before the confirmatory act was passed that the transferees were entitled to have said entry re-instated.

The judgment canceling said entry has not been allowed to become final, but has been kept open by the appeal taken from your office decision refusing re-instatement. If said judgment had become final before the act was passed, no rights could be acquired by the motion because no entry existed. James Ross (12 L. D., 446).

Before considering the motion, it therefore becomes necessary to pass upon the merits of the case as brought here by the appeals from your decision of April 17, 1890.

The hearing ordered on the showing made by the transferees was held for the purpose of determining the truth or falsity of the allegations made in support of the motion for re-instatement and after an examination of the evidence, it seems clear that the charges made were sustained, in fact, in your office decision you find that the proof showed that the contest of McLeod and the relinquishment of Bruce were collusive and were intended to defraud the transferees. Bruce hoped to get the land through McLeod's contest and entry for the reason that through the efforts and expenditures of the transferees, it had become valuable, besides when your office called upon him to supply certain missing proof and the transferees had refused to pay him a large sum of money to furnish said proof, he declared that he would prevent them from acquiring title to said land. Under such circumstances and especially when he had sworn in his final proof that his entry was made in good faith for his own use, I think his testimony should be considered with caution.

Prior to the passage of the act of March 3, 1891, the transferees were held to have no greater rights or equities than the entryman from whom they purchased, but they were always allowed to appear and show that said entryman had complied with the law. Traveler's Insurance Co. (9 L. D., 316).

In this case it is shown that the letter of your office, directed to the register and receiver calling on Bruce to submit better evidence of citizenship or to file a new declaration of intention and to furnish a new pre-emption affidavit (the one indorsed upon his final proof papers having omitted to state what particular subdivisions were included, though showing the township and range) was dated April 13, 1886. After allowing for the time between this date and the date when this order must have been served upon Bruce, (The date of service is not shown) it is probable that it was a month or two later before he was asked to make the proof. Then after the transferees learned that new proof was required more time had elapsed. They then began to urge Bruce to furnish this proof and offered to pay all expenses and pay for his time. The proof called for was technical and did not indicate that in the matter of residence and improvement there had been any failure,

and while he was attempting to extort money from the transferees, they evidently yet thought he would furnish said proof in time.

The contest of Mc Leod brought by Bruce's procurement quickly followed by the relinquishment of the entry and the allowance of the entry of contestant, was the first intimation that the transferees received that their title to the land was seriously questioned. I think that the evidence shows that they had not been given a "day in court" to show that their grantor had complied with the law, especially is this so when this grantor and entryman has shown himself so hostile. The entry of Mc Leod will therefore be canceled, and the entry of Bruce be re-instated. This re-instatement, of course, will place the entry on record of the date when it was wrongfully canceled. In contemplation of law it has been an existing entry all the time, and was an existing entry on March 3, 1891, when the act heretofore cited was passed.

Do the provisions of the seventh section of said act confirm this entry?

At the hearing had on the application for re-instatement of this entry, the question of the bona fides of the purchasers was not in issue. The question to be determined under the order was whether or not the charges made by those claiming under the Bruce entry, that the contest against it and the relinquishment thereof were collusive, were false or true.

The present owner of the tract, the Great Falls Water-power and Townsite Company, alleges that it is a purchaser in good faith for a valuable consideration and without notice of any kind that the entry of Bruce was not made in good faith.

While the question of the bona fides of the present holder of this land was not in issue, and while those claiming under the Bruce entry only asked to have the entry reinstated so that they might be enabled to show that the entryman complied with the law, still on the trial of said cause some facts were sworn to showing that Gibson, one of the purchasers of the tract, and Vaughn, another purchaser, had contracted with Bruce to make the entry in question for their benefit, and your office held,

I am fully satisfied that Bruce filed upon and made cash entry of the land in controversy, in pursuance of said contract and in the interest of Vaughn, Gibson, et al., who now constitute the stockholders of what is known as the Great Falls Water-power and Townsite Company.

It is strenuously denied that any of the first transferees, who are charged with bad faith in your decision, have any stock in said company except Gibson. It is also denied that he or Vaughn or any one else procured Bruce to make the entry.

From the evidence in the record, I do not think your finding of fraud is sustained. The local officers who saw the witnesses and observed their manner of testifying did not find any fraud on the part of any of the transferees, or that the entry was made in the interest of any of

them. Your judgment seems to have been formed from the testimony of Bruce and the failure of Vaughn to give evidence.

Bruce, judged in the light of his statements, is not guided by that motive which carries conviction as to the integrity of his evidence and the neglect of Vaughn to give testimony is now explained in a way which partially, at least, explains his neglect.

It is shown by the record that at the date when the present owner, the Great Falls Water-power and Townsite Company (July 9, 1887), purchased the tract, the entry had been canceled and another entry allowed therefor. The records of the local land office disclosed these facts. The transferee is bound to know the status of the land at the date of its purchase, and although a final certificate may have been issued at the time of the transfer, yet the entry having in fact been canceled at that date, it would not be confirmed. Roberts v. Tobias et al., 13 L. D., 556. In this case the Department said:

He is bound to know the status of the land at the date of the sale or mortgage. If the final proof has not been made and the certificate has not issued, or, if having been issued it is duly canceled on the records of the local office, can the vendee or mortgagee shut his eyes, pay out or loan his money on the faith of the certificate issued perhaps many years before, when the entry has already been canceled, and claim to be an innocent purchaser? I think not. The law never intended that a man should wilfully shut his eyes to the condition of the land as shown by the record, at the very time the purchase or loan was made.

For these reasons the motion for confirmation must be and is hereby rejected.

You will cancel the entry of Mc Leod and reinstate the entry of Bruce, after which the transferees will be allowed an opportunity to furnish. additional proof of the citizenship of Bruce. This proof should consist of the best obtainable evidence. They will also be allowed to amend the pre-emption affidavit of Bruce so that it will describe the tract perfectly.

Since the appeal was taken in this case from your judgment, Mc Leod has filed a motion asking that a re-hearing be ordered, alleged that he has discovered new evidence which he could not have produced before, by which it can be shown that there was no collusion between him and Bruce. He has filed his own affidavit and that of John H. Mc Leod, tending to show that there was no collusion. These affidavits have been examined, and it is found that even assuming that the witnesses named in the motion will swear to the facts alleged, still it would not be suffi cient to overcome the positive and unmistakeable evidence in the record that there was collusion between Mc Leod and Bruce. Mc Leod knew at the time his contest was initiated and at the time Bruce filed his alleged relinquishment that all interest Bruce had ever had in the land had been by him transferred to others for a valuable consideration. Bruce lived with Mc Leod, who was his kinsman, and Mc Leod filed his contest immediately after Bruce had declared that he would beat the

transferees out of the land, if they refused to pay him $1,500 for com pleting the evidence.

Altogether it is apparent that there was collusion, and the evidence now proposed to be furnished does not materially differ from that introduced by Mc Leod at the trial.

The motion for a re-hearing is denied.

Your judgment is reversed, in so far as it refused to reinstate the entry of Bruce.

SETTLEMENT RIGHTS-PRACTICE-REVIEW.

STONE v. COWLES (ON REVIEW).

A settlement on land covered by the entry of another confers no right as against the entryman or the governmert, but as between parties who have thus settled, the settlement first made in point of time is entitled to the highest consideration. A settlement right is not acquired by the purchase of the prior possessory right of another.

A motion for review will be denied where no new question of law or fact is presented for the consideration of the Department.

Secretary Noble to the Commissioner of the General Land Office, January 22, 1892.

This is a motion by the attorney for Alfred E. Cowles asking for a review of the departmental decision dated August 24, 1891, (13 L. D., 192) in the case of Joseph C. Stone v. Alfred E. Cowles, involving the NW. of the NE. and the NE. 1 of the NW. of Sec. 13, T. 14 S., R. 2 W., Los Angeles, California.

Three errors are assigned in this motion as follows:

1. That said decision is based upon an error of fact in holding that said Stone was a legal settler upon the land with any declared intention of claiming it as public land at any time prior to the entry of said Cowles.

2. That it is based upon an error and mistake of fact and law in not holding that said Stone moved on three acres of the land as a tenant, and solely by permission of Cambron who claimed title to three acres only, which had been set aside for a grave yard.

3. That as such tenant of Cambron, Stone could acquire no settlement right to the land.

the

4. That as a trespasser in violation of law Stone could not acquire any legal right under the act of May 14, 1880, or any other act, based upon an illegal settlement. Each of these grounds of error was substantially covered by the ap peal, and was fully considered by the Department in passing upon case. Notwithstanding this it is claimed that in some manner Cowles acquired a superior right by reason of the possession of French, for it is urged in argument that French had been in the undisputed possession of the tract for fifteen years seeking to obtain title to it. Assuming this to be true, French's possession could not avail anything for Cowles. It appears that French had relinquished all his rights to the land. Cowles could not acquire any right to the land by virtue of his pur

chase from French. "The only things he can buy are the improvements of a prior settler. His own right as a settler must date from the time he made actual personal settlement." Wiley v. Raymond (6 L. D., 246). French is not a party to the controvery, he voluntarily relinquished his rights, and after that was done then the question became one of settlement between Stone and Cowles, neither of whom could base any claim to the tract upon anything that French had done thereon. As against French, so long as his entry remained of record, or as against the United States, neither Cowles nor Stone could acquire any right by virtue of their settlements upon the land covered by French's entry, yet as between the parties who have thus settled, the settlement first made in point of time is entitled to the highest consideration. Kruger v. Dumbolton (7 L. D., 212).

This doctrine was clearly announced in the decision sought to be reviewed, and there is nothing new presented in the argument of counsel for Cowles upon this point.

Counsel for the motion assert, "that there is not any evidence showing that Stone pretended to claim as a settler until March 2, 1888, but that prior to that date he was claiming the three acres only under the Cambron deed, and that up to that date he was a tenant under Cambron." This assumption is not borne out by the evidence. The finding of the Department on this point was as follows:

It is clear from the evidence that he (Stone) all along, from August, 1887, laid claim to the whole eighty acres. Laying no stress upon his offer to make entry of the whole eighty, August 17, 1887, it clearly appears that when he made settlement and took up his residence on the three acres, which had been sold to Cambron, he did so with the expressed intention of claiming the whole subdivision in dispute. This is shown by his own and Cambron's testimony, in fact, Cowles must have understood this, for he admits that he notified Stone "to leave and quit the premises."

A careful examination of the evidence shows these findings to be abundantly supported by it, and the authorities cited by counsel are not applicable to such a state of facts.

No new question, either of law or fact, is presented by the motion under consideration, therefore, I discover no reason for disturbing the decision heretofore made in the case. The motion is denied.

PRACTICE-MOTION TO DISMISS CONTEST-NOTICE.

JOHNSON v. JACKSON.

An order of the local office dismissing a contest can not be held to be sua sponte, where such action is not taken until after a motion, asking for said order, has been filed.

A motion to dismiss filed after the day set for hearing should not be acted upon without due notice to the opposite party.

A motion to dismiss a contest on the ground that the contestant, in proceedings before a commissioner, has not paid for taking the testimony, as required by the rules of practice, should not be sustained, where, prior to action thereon, the requisite fees have been paid and the evidence transmitted to the local office.