HOMESTEAD CONTEST-RELINQUISHMENT.

CHATTEN v. WALKER.

The execution of a relinquishment is not in itself sufficient to warrant the cancellation of an entry, but may be properly considered with other facts in determining the bona fides of the entryman.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 4, 1893.

The and involved in this appeal is lots 3 and 4, and E. 1, SW. 1, Sec. 30, T. 21 S., R. 10 W., Larned, Kansas, land district.

It is shown by the record that Henry A. Walker made homestead entry of said land July 31, 1888. On March 19, 1889, Edgar L. Chatten filed an affidavit of contest, alleging that the claimant

has wholly abandoned said tract; that said tract is not settled upon and cultivated by said party as required by law, and that the same is held for speculative purposes, and that the said Henry A. Walker has attempted at different times to sell said tract of land and has relinquished the same.

A hearing was had; the testimony of the contestant having been taken by deposition, and that of the claimant submitted before the local officers, and as a result thereof they found in favor of the contestant. Claimant appealed and you by letter of December 3, 1891, affirmed their decision, whereupon he prosecutes this appeal, assigning as error, substantially that your decision is against the law and evidence.

When this case was called for trial, on June 4, 1889, the attorney for contestant, made a demand on the defendant for an inspection and permission to take a copy of his receiver's duplicate receipt for his homestead entry No. 10789, dated July 31, 1888, for the land above described, together with all writings endorsed on the back thereof. This demand was stated to be for the purpose of using the receipt and the endorsements thereon as evidence. This was objected to and refused by the defendant. The local officers, in passing upon the demand held thatThe execution of a relinquishment does not constitute a cause of action and a production of the receipt showing that a relinquishment had been executed would be immaterial, therefore the application is denied.

The contestant then applied for and secured a continuance to take depositions, by which it is shown by Charles H. Moore

that on or about March 12, 1889, he prepared and acknowledged a relinquishment of the land embraced in Walker's homestead; he thinks the relinquishment was written on the back of the receipt but is not certain; he did not give any reason for relinquishing it; I gave it to him.

On cross-examination, he says:

I never saw the land; I will not testify positively as to what piece of land he relinquished; do not remember the numbers.

Q. Did not Chatten tell you that the object in bringing this contest was because defendant owed the firm of Chatten Brothers and that the sole object was to force Walker to pay the defendant?

A. A party who, I think, was the younger Chatten told me after the contest was brought that they thought they had him in a place that this might effect a settlement with him. He told me that Walker owed them some money.

A. J. Blackwood, an attorney, on direct examination testified:

I took Brown's acknowledgment to a deed about March 18, 1889; did not prepare it nor do I know to whom it was made; Brown and Walker came to my office about that date, and Brown handed me a deed which he acknowledged before me, and I returned it to him. The deed was for Illinois land and from the conversation I gathered that there was a trade pending between Walker and Brown; that is, Walker was trading his homestead for the Illinois land. Brown did not deliver the deed in my presence, nor did I see any relinquishment of a homestead.

I do not remember the conversation in full but my mind was impressed with the fact that they were trading as before stated.

On cross-examination he testified that one of the Chattens-Edgar-wanted him to see if he could fix up a claim that they-Chatten Brothers-had against Walker. He also told of a conversation he had with them about this deed, but says he gave them but little satisfaction.

When the case was again called at the local office, plaintiff offered in evidence a certified copy of a deposition of Wm. Brown, said to have been taken in a case entitled "Lafayette Holmes v. Sheldon Stoddard et al., which deposition" it is said by counsel, "relates largely to the matters at issue in this case." He also renewed his motion to require the defendant to produce his receiver's receipt.

On defendant's objecting to these the register held that the copy of depositions was "irregular and incompetent but under rule 41, of the rules of practice, can not be excluded from the record," and on the motion held that either party may demand of the opposite an inspection of any paper thought to be material: "the party may consent or refuse, but in the event of his refusal to comply with the demand all sworn testimony in relation to the same may be taken as true." Here the contestant rested, when defendant moved "that this case be dismissed on the ground that plaintiff has not introduced evidence sufficient to constitute a cause of action."

The register denied this motion, and required the defendant to submit testimony in defense. This ruling was excepted to, is preserved in the record and is now urged here.

I do not think the register erred in overruling this motion. It seems to me there was sufficient testimony offered to require the defendant to be put upon his proof. While it is true that the fact of the execution of a relinquishment is not of itself sufficient to warrant the cancellation of an entry, yet it may be considered with other facts to show the bona fides of the entryman.

But I can not concur with your judgment on the facts.

The evidence on behalf of the defendant shows that he had about forty acres under cultivation; about one hundred fenced, a good house and other improvements of the value of about $600; that he had lived with his family continuously on the land; that he was largely in debt and among others of his creditors was the firm of Chatten Brothers,

of which the contestant is a member; that negotiations had been pending for some time by which he hoped to pay them, but that they had failed. The defendant admits that he executed a relinquishment to the land as the result of a trade he was trying to make with one Brown, and that Brown had executed a deed to him or his wife, for some land in Illinois; that in addition to the Illinois land Brown was to pay the claim of Chatten Brothers; that Brown took the relinquishment to the local office to see if he could make an entry on the land, when he was informed of this contest; he then returned the relinquishment to the defendant and the trade was dropped. This is not sufficient to sustain the charges in this case. Blank v. Center, 11 L. D., 597.

I can not conclude from these facts that there was any intention on the part of the entryman to hold the land for speculative purposes. On the contrary, I am impressed with his good faith in holding the land and improving it under the adverse circumstances, and I do not think the fact that he tried to dispose of it for the sole purpose of effecting a composition with his creditors, should be construed as a lack of good faith.

Your judgment is therefore reversed.

RES JUDICATA-MINERAL LAND-PREFERENCE RIGHT.

DORNEN v. VAUGHN.

An order of cancellation is final as to the rights of the entryman in the absence of appeal, and no right under the cancelled entry can be subsequently asserted as against the intervening adverse claim of another.

The preferred right of entry accorded a successful contestant by the act of May 14, 1880, may properly extend to an agricultural claimant who successfully contests a mineral claim, and clears the record thereof.

▲ bona fide pre-emption claim, lawfully initiated prior to the repeal of the pre-emption law, is protected by the terms of the repealing statute.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 5, 1893.

On May 3, 1882, Mary Dornen made homestead entry (No. 3578) for lot 2, or W. of SW. and W. of SE. of SW. 4 of Sec. 18, T. 12 N., R. 83, M. D. M., containing 99.71 acres, at Sacramento, California.

By your letter of November 16, 1882, said entry was held for cancellation as to the SW. of SW. 1, and the W. of SE. of SW. 1 of said section, as being mineral in character and subject to disposal only under the mining acts of Congress, and sixty days were allowed for appeal. No appeal was taken, and said entry was cancelled as to said mineral part by your letter of May 14, 1883.

On June 29, 1888, Charles F. Vaughn filed a petition to be allowed to show the non-mineral character of said last mentioned tract. He also applied to file a pre-emption declaratory statement therefor.

A hearing was ordered on said petition for October 11, 1888, when Vaughn appeared with his witnesses. Valentine, the mineral claimant, also appeared by counsel. Said Dornen also appeared with witnesses, and filed an affidavit, in which she asked leave to offer evidence in aid of the efforts of said Vaughn to show the non-mineral character of said land and claimed the right to have her said homestead entry restored so as to cover said tract. A compromise was effected between Vaughn and the mineral claimant, and the latter withdrew from the contest. The local officers held that the tract was agricultural, and that Vaughn should be permitted to enter the same under the agricultural laws.

By your letter of July 24, 1889, their decision was sustained so far as it adjudged the land to be agricultural, and the case was closed as between Vaughn and the mineral claimant. A hearing was ordered to determine the rights of Mary Dornen, and she and Vaughn appeared on October 15, 1889, and submitted testimony.

On January 20, 1890, the local officers held

1. That the order of cancellation of H. E. 3578, in so far as tract in controversy is included, remains in force. 2. That upon payment of legal fees and commissions, Charles F. Vaughn be allowed to enter said tract under the agricultural laws of the United States.

Their decision was affirmed by your letter of December 10, 1891. An appeal now brings the case before me.

The grounds of appeal are specified as follows:

Appellant excepts to the rulings appealed from for the reas on that the homestead of appellant was, when made, a valid and subsisting entry, subject only to the claims of the government thereto as mineral land, and that when the claim of the government as mineral land was shown to be without foundation, her right thereto sprang into full vigor.

For the further reason that her cultivation of a part of the land embraced in the entry was a sufficient compliance with the law as to continuity of claim, and cultivation, coupled with the undisputed fact that she always claimed it.

For the further reason that there is in the record no evidence of abandonment; and no evidence that she slept upon her rights; but on the contrary abundant evidence that if she had attempted at an earlier day to disprove the mineral she would have failed by reason of the strong miners' organizations always ready to step in and prove anything with reference to such matters.

When the appellant failed to appeal from the decision of November 16, 1882, holding her entry for cancellation for the tract in controversy, she acquiesced in that decision, and it became final as to her said right to the land. The question of her said right became res judicata, and she is barred from asserting any further right to the land under the entry, even if said decision was erroneous, in order to defeat an intervening adverse claim. Wesley A. Cook (4 L. D., 187); Macbride v. Stockwell (11 L. D., 416); Wells on Res Adjudicata, Chap. 1, Sec. 6.

The judgment in favor of Vaughn in his contest did not have the effect to vacate the former judgment against her, which still remained of record. These two judgments were rendered in separate and distinct

contests, and between different parties. The judgment against her settled her right to the land at the time it was rendered, and continued in force against her until set aside. It appears that she so regarded it by applying to make final proof for her north forty at different times.

When Vaughn brought his contest to determine the character of the land, and the mineral claimant, after the admission of testimony, withdrew from the contest, and the local officers decided that the land was agricultural, from which no appeal was taken, the land became vacant public land, open to entry by the first legal applicant. At that time Vaughn had applied to file a declaratory statement, and the appellant had applied to have her original entry restored. Both parties claimed possession and made improvements on the land.

By the decision of this Department rendered April 20, 1872, in the case of John B. Hill, pre-emption claimant, against certain mineral affiants, the character of the E. and SW. of SW. of said section 18, was adjudged to be mineral.

The same tract was again held to be mineral in your said decision of November 16, 1882, in which the entry of Mary Dornen was held for cancellation as to the part embracing said tract.

Vaughn's contest and declaratory statement embraced only the SW. of the SW. of said Sec. 18, or twenty acres less than said tract embraced in the canceled part of Mary Dornen's entry adjudged mineral, as above stated.

At the time of the hearing on Vaughn's contest, S. D. Valentine had located a lode claim designated as the "88 mine" on a part of the forty acres contested by Vaughn, and Valentine was then the only claimant on record of any part of said land. Vaughn therefore had to clear the land of the mineral character imposed upon it by said decisions and also clear it from said lode claim. This he successfully accomplished by his contest.

The government, through its proper officers, had decided that this tract was mineral land in two decisions, with an interval of ten years between them against two separate claimants, and, therefore, was interested as a party adversely to the contest initiated by Vaughn, while Valentine was adverse claimant to a part of said tract.

The second section of the act of May 14, 1880, (21 Stat., 140), gives a preference right of entry to any person who has "contested, paid the land office fees, and procured the cancellation of any pre-emption, homestead, or timber culture entry."

In Fraser v. Ringgold, (3 L. D., 69), it was held that a desert land entry was a "pre-emption entry" within the meaning of the above statute. Measured by the definition established in that case, a mineral entry is also a "pre-emption" within the broad meaning of the term, In Ringsdorf v. The State of Iowa (4 L. D., 497), the above act was held to apply to a contest against a swamp land selection by the State of Iowa.