the entry of Bailey to remain intact, from which decision Mrs. Rush appealed.
The record and evidence in the case are such that but one question remains, to wit: Is Mrs. Rush qualified to make adjoining entry? It is quite clear that if she is qualified to make an adjoining farm homestead entry for the land, she should be allowed to do so, as her contest affidavit is shown to have been true, and the relinquishment should not be allowed to defeat her preference right; but her right to make the entry depends upon her title to the land on which she resides.
She is the widow of Frederick Rush, deceased. The will of her late husband, by duly certified copy, is in evidence. By the second item in said will the testator says, "I give and bequeath to my beloved wife Isabella, one hundred and twenty acres of land, to wit, . . . . to be set apart as a homestead for the term of her natural life," etc. appears that other property was given her, and among this a five-acre tract of land, on which is a grist mill. The will directs the sale of certain other lands to pay testator's debts, and the excess, if any, to go to the benefit of his wife. He further directs how the homestead, mill, and other real estate, and any remaining money and chattels shall be distributed among his heirs, upon the death of his wife.
It is apparent from this instrument that Mrs. Rush is only a tenant for life by the devise of Frederick Rush, her late husband, the fee being in his heirs. Her attorney, however, claims that you erred in holding that she was not the owner of the land, and he insists that "she owns the land absolutely, during her life, and lives upon it", and therefore can make the adjoining entry.
In a later brief, filed in this Department, he claims that Section 2289, R. S., was amended by the act of March 3, 1891, (26 Stat., 1095) and by section 5 of said act the word "owner" is qualified by, and synony mous with the word "proprietor." I confess that I am unable to find in the amended statute any warrant for the latter proposition.
The paragraph relating to entries of contiguous land, in the section as amended, is identical with that of the original section; each uses the words "owning and residing on land", and "so already owned and occupied." I do not find that it uses the word "proprietor", or any words relating to title, except the words owned and occupied, which last is used as the equivalent of "residing on."
The contention that she is the owner is not maintainable under common law, or the law of Alabama, and not being the owner, she cannot make the proposed entry. Your decision is therefore affirmed.
See Fees, Repayment.
Failure of the General Land Office to sub-
mit for the Secretary's approval a contract
with a deputy surveyor that properly pro-
vides for special rates, will not prevent ad-
justment of his account under the contract
where he has performed the work, and the
statute providing for the Secretary's ap
proval of the contract does not preclude
such action after performance of the work. 474
![[blocks in formation]](https://books.google.lu/books/content?id=Oi5KAAAAMAAJ&hl=de&output=html_text&pg=PA567&img=1&zoom=3&q=editions:STANFORD36105063441716&cds=1&sig=ACfU3U1_EtBy0m8DtdYHMC8P8evLQt_rwg&edge=0&edge=stretch&ci=108,647,414,779)
To enter cannot be allowed for land em-
braced within a prima facie valid timber
culture entry (made by a married woman).. 130
To enter should not be allowed during
the pendency on appeal of the prior rejected
application of another
To enter land included within the entry
of another confers no right, and if appeal
is taken from the rejection of such an appli-
cation a subsequent relinquishment of the
record entry will not inure to the benefit of
the applicant....
To enter lands embraced in the order re-
storing to entry lands certified for the bene-
fit of Bay de noquet grant confers no right,
if filed before the day fixed for such res-
toration.....
To enter not required for the protection
of a settler as against an adverse entryman;
where the settler, within three months after
settlement, applies to contest such entry,
alleging his own priority
To enter filed immediately after the re-
linquishment of a previous entry of the
tract is defeated by the prior settlement
right of a third party...
In case of simultaneous, the privilege
should be awarded to the highest bidder... 302
Failure to appeal on rejection of, does not
defeat the right of the applicant, if the requi-
site notice in writing of such adverse action
is not given the applicant.......
Failure to appeal from rejection of, will
not preclude subsequent assertion of prior-
ity, where at the date of such action the
title to the land was erroneously believed
to be not in the United States..
On appeal from rejection of, the appellant
is not required to serve notice on a subse-
quent applicant for the same tract........
DESERT LAND.
Cannot, under the act of May 26, 1890, be
executed before a commissioner of a circuit
court outside the county in which the land
is situated
See Contestant.
GENERALLY.
Against final entry, can not proceed to a
hearing until such action is authorized by
the General Land Office..
Affidavit of, if not properly corroborated,
may be rejected by the local officers..
Affidavit of, if made upon facts within the
knowledge of the contestant, may be corrob-
orated by witnesses who testify en informa-
tion and belief; but if the contestant's alle-
gations rest upon information and belief they
should be corroborated by witnesses whose
statements are based on personal knowledge
of the facts
Not accepted during the pendency of pro-
ceedings on the part of the government.... 58
Proceedings by the government are no
bar to a, where they are abandoned with-
out a hearing therein
![[blocks in formation]](https://books.google.lu/books/content?id=Oi5KAAAAMAAJ&hl=de&output=html_text&pg=PA568&img=1&zoom=3&q=editions:STANFORD36105063441716&cds=1&sig=ACfU3U1O4D8M9YKS_uaKgt_GogaNdrUEYw&edge=0&edge=stretch&ci=496,577,416,208)
Should not be allowed to proceed while
the section including the land involved is
suspended from entry on account of conflict
with a private claim.....
..... 450
Not initiated by an application to enter
land embraced within the claim of another. 44
A defendant who elects to plead a statu-
tory defense, and submits no evidence, is
not entitled to a further hearing in the event
his defense is held not good.........
DESERT LAND.
Death of defendant suspends action until
his heirs or personal representatives are
substituted as defendants, and are brought
into court by proper notice, or voluntarily
appear......
In case of joint, where all the contestants
unite in similar charges, such common alle-
gation may be taken in corroboration of the
separate affidavits of.................
The pendency of a departmental order
suspending an entry deprives the local and
General Land Office of jurisdiction to hear
and determine a...
Application to proceed against a sus
pended entry should be held until the sus-
pension is removed, and where the order re-
moving the suspension recognizes the right
of the contestant to proceed, an interven-
ing relinquishment will not defeat such
right.......
Validity of a contest is not affected by
the fact that the contestant is a minor..... 403
Who desires to maintain his status as such
must pay the expenses of a rehearing...... 481
Preferred right of, not defeated by a re-
linquishment, and the intervening entry of
a third party filed during the pendency of
the contest.
Right of a, to proceed against an entry
not defeated by an intervening relinquish-
ment........
A successful, who tenders all the fees re-
quired of him by the local officers at the
time he applies to enter, loses no right that
can be taken advantage of by an intervening
entryman, if the amount of the tender is less
than the legal fees
The preferred right accorded a successful,
by the act of 1880 may properly extend to
an agricultural claimant who successfully
contests a mineral claim
Act of May 14, 1850, amended. so that heirs
of a deceased contestant may proceed with
the suit. Circular of January 9, 1893 ...... 34
A pre-emptor who appeals from the rejec
tion of his filing is not entitled to a prefer-
ence right as a successful, if his appeal re-
sults, on examination of the records, in the
cancellation of a prior townsite entry...... 127
Preferred right of a successful, can not
be defeated by an application to purchase
under the act of June 15, 1880.......
Who attacks a homestead entry of land
that is embraced within the prior desert
entry of another, against whom no default
is charged, acquires no preference right in
the event of success ..
Ditches.
See Right of Way.
Donation,
There is no right in the parents, or their
children (as orphan heirs), to initiate a claim
if the death of the parents, occurs before
they reach the State (Oregon)..
An adverse right existing at the date of
the act of August 6, 1888, defeats the con-
firmation of a claim thereunder...... ..... 202
A claimant who has not fully complied
with the terms of the law has no title that
can be conveyed by devise
Section 8, act of September 27, 1850, pre-
scribes no limit as to the time within which
the heirs shall file proof of compliance with
law up to the date of settler's death; and the
failure of the widow to submit such proof
for a term of years, does not defeat her right
to perfect title
Entry.
See Cancellation.
GENERALLY.
One engaged as the agent or attorney of
others in procuring information from the
records of the local office for the benefit of
such individuals is not by such employment
disqualified under section 452 R. S., to enter
public land...........
Failure of local office to make proper
record of, can not prejudice the claim of
one who has fully complied with the law... 187
Right to reinstatement can not be recog
nized where the adverse action has become
final, and the claim of another intervenes.. 404
Canceled on relinquishment prior to is-
suance of final certificate, and the land
entered by another, can not be reinstated
for the protection of a transferee who
alleges that the relinquishment was in
fraud of his rights, in the absence of evi-
dence connecting the intervening entryman
with such fraud.....
140
An intervening adverse claim defeats an
application to change or amend............ 313
The right to amend is defeated by an in-
tervening adverse claim..
May be so amended, in the absence of ad-
verse claim, as to avoid conflict with the sub-
sequent entry of another though taking land
not originally applied for, where good faith
is manifest and the parties were misled by
error of the local office......
Provisions of, for the benefit of incum-
brancers extend to a homestead entry made
by one who had previously secured title to
another tract under the homestead law.... 540
An entry is confirmed under the body of
said section, though the entryman did not
at the date of entry occupy the status of a
citizen, but the facts were then made known
to the local officers...
Failure of the entry man to comply with
the law, and knowledge of such fact by his
immediate transferee, will not defeat confir-
mation for the protection of subsequent
bona fide purchasers..
For the benefit of one who in good faith
buys the land prior to March 1, 1888, not af
fected by the fact that the final deed cor
rectly describing the land was not executed
until after said date.......
A transferee who, prior to purchase, ex-
amines the premises, can not be considered
a bona fide purchaser, where an examina-
tion would disclose the fact that the entry.
man had not complied with the law.......
A charge of fraud, and that the trans-
feree had knowledge thereof, should be in-
vestigated before determining whether the
entry is confirmed under said section...... 338
Transferee of homesteader who makes cash
entry under the act of June 15, 188), in the
presence of a contest, is not a bona fide pur-
chaser, where he has full knowledge of the
asserted adverse claim of the contes
|