FLORENCE BREY.

Removal from Own Land-Character of Land.--In determining whether a pre-emption settlement is in violation of the second inhibition of Section 2260, Revised Statutes, the character of the land from which removal is made, and the purposes for which said land was used, may be taken into consideration.

First Assistant Secretary CHANDLER to Commissioner GROFF, October 26, 1889.

I have considered the appeal of Florence Brey from your office decision of July 7, 1888, rejecting her proof for her pre-emption filing on the S. 1/2 of S. W. Section 14, and W. 1⁄2 of N. W. 4 Section 23, T. 8 S., R. 19 E., Stockton land district, California.

Brey filed her pre-emption declaratory statement for the said land October 28, 1887, alleging settlement on the eighteenth previous.

Claimant made her final proof June 5, 1888, before the local officers. Rejecting the proof they said:

Her proof appears sufficient as to residence and improvements, and her acts show good faith; but from her testimony it appears that she owned one third interest in a tract of agricultural land of seven acres in Santa Clara county in this State, whereon she had resided for about five years prior to her settlement on said pre-emption, and which she left for the purpose of settling on her pre-emption claim. In our opinion this disqualifies her from acquiring a right of pre-emption under the prohibitive clause of subdivision two, Sec. 2260, Revised Statutes.

The question whether the claimant had quitted or abandoned her resi dence on her land to reside on the public land in the same State in violation of the second inhibitive clause of said section 2260 of the Revised Statutes must

be determined by the following rules. In the case of Austrian vs. Hogan (6 C. L. O., page 172) it was held that the inhibition extends only to agricultural lands. In Sturgeon vs. Ruiz (1 L. D., 490; 8 C. L. O., 193), it determined that was a pre-emptor who moves from his own home in a city, town or village upon a pre-emption claim is not debarred. (See also 6 C. L. O., 172.) In the case of Payne vs. Campbell (8 L. D., 367; 16 C. L. O., 42), it was held that joint ownership in lands clearly brings the claimant within the inhibition. Of course if the land is not agricultural the rule in Payne vs. Campbell does not apply. The record fails to disclose the nature and character of the land removed from sufficiently to enable me to say whether it was agricultural land or not, within the scope of the above cited cases. You will, therefore, require supplementary proof as to the location and character of the land removed from and the uses to which it was put by the claimant, and if within the requirement herein, the proof of claimant will be accepted and upon her further compliance with the requirements of the pre-emption law, patent be issued.

Your said office decision is accordingly modified.

FREDERICK KISTLER.

Section 2260, R. S.-A pre-emptor who, prior to settlement or filing, had in good faith sold that portion of his homestead which embraces his improvements and that part of the land on which he formerly resided, is not within the second inhibition of Section 2260 of the Revised Statutes.

Secretary VILAS to Commissioner STOCKSLAGER, January 25, 1889.

On June 1, 1885, Frederick Kistler made final homestead entry for the N. E. 4 of N. W. 4, the N. 1⁄2 of N. E. 4, Sec. 20, and N. W. 1⁄4 of N. W. 4, Sec. 21, T. 6 N., R. 26 W., McCook, Nebraska.

On June 11, 1885, he filed declaratory statement, alleging settlement the day before, upon the N. 1⁄2 of S. W. 4, N. 1⁄2 of S. E. 4, Sec. 17, in the same town and range.

The proof submitted at the local office February 11, 1887, in support of said filing, shows that the claimant's improvements, worth about four hundred dollars, consisted of a house, fifteen by twenty feet, a stable and other outbuildings, twenty acres broken, and three-quarters of a mile of wire fence; that he has raised crops one season, and that, with the exception of a few days in December, 1885, and about a month in November and December, 1886, his residence upon the land was continuous.

This proof was rejected by the local office, for the stated reason that the claimant had moved from the land embraced in his said homestead entry to the tracts for which he seeks to make pre-emption proof.

From the statement of your office, it appears that the local office ascertained this fact by questioning the claimant subsequently.

Upon appeal by the claimant, your office, by decision of March 21, 1887, sustains the action below. On September 9, 1888, the Department considered the claimant's appeal from your said decision. The record transmitted with this appeal contained the claimant's affidavit, dated August 14, 1888, setting out new matter. The case was thereupon remanded to your office for further consideration.

By decision of October 2, 1888, your office adhered to its former ruling. By letter, dated December 15, 1888, counsel for the claimant requested that the papers in the case be "returned to the Honorable Secretary for his decision."

In compliance with this request, your office by letter of December 28, 1888, transmitted the papers, and the case has been considered.

In his supplemental affidavit, the claimant avers that upon making proof for the homestead entry mentioned, he visited his brother at Hastings, Nebraska; that prior to filing his said declaratory statement, i. e., on June 8, 1885, being in need of money, he sold to his brother the larger portion of his homestead, to wit: the N. 1⁄2 of N. E. 4, N. E. 4 of N. W. 4, Sec. 20, T. 6 N., R. 26 W.; that his residence and improvements were situated upon the land so sold, and that he did not in any sense remove from land of his own to make settlement upon the tract in question. He further stated that he supposed these matters had been presented by his attorney with his proof; that he believes his said attorney to have acted in bad faith, and that he is a German and does not understand the English language.

The county clerk and ex-officio recorder of Frontier county, in which the land is situated, certifies that the records of his office show that the claimant made warranty deed on June 8, 1885, to Jacob D. Kistler, for the N. 1⁄2 of N. E. and N. E. 4 of N. W. 14 of said section 20.

I can not concur with the conclusion reached by your office. The statute declares that "no person who quits or abandons his residence on his own land to reside on the public land in the same State or Territory," shall acquire any right of pre emption.

This record shows that before he had made settlement, or filed his declaratory statement, the claimant had sold that part of his homestead whereon his improvements were located and where he had previously resided. His residence upon his homestead, therefore, ceased when he conveyed the legal subdivisions, which contained the house in which he had actually lived, as well as all his improvements. It therefore cannot be held that, when subsequently to such sale, he settled upon and filed for the land embraced in his pre-emption, that the claimant had abandoned a residence "on his own land.'

There appears nothing to impeach the bona fides of the sale and conveyance, nor to justify the suspicion, much less belief, that the conveyance was in fact in trust for the grantor's benefit and designed only to colorably trans

fer title to avoid the limitation of the pre-emption law. This distinguishes this case from some others where the facts warranted such a conclusion and the statute has been held applicable.

It appearing from the record that the claimant has complied with the preemption law in the matter of residence and improvements, his proof should be accepted and his entry allowed. Your decision is accordingly reversed.

JAMES E. MOONEY.

Bad Faith-Removal from Own Land..-Contracting a short time before settlement for the sale of land owned by a pre-emptor and a prompt reconveyance of the same to his wife, is evidence of an attempt to evade Sec. 2260, Revised Statutes, and of bad faith sufficient to warrant the cancellation of his filing.

Assistant Secretary MULDROW to Commissioner STOCKSLAGER, September 15, 1888.

This is an appeal by James E. Mooney from your office decision of March 8, 1887, holding for cancellation his pre-emption declaratory statement, filed June 9, alleging settlement March 11, 1884, upon S. 1⁄2 N. E. 4, and S. 1⁄2 N. W. 4 Sec. 29, T. 22 S., R. 21 W., Larned, Kansas.

The facts are sufficiently stated in your said decision, and reference is made thereto.

The contract, by which Mooney claims to have sold his homestead, was made but a short time prior to his alleged settlement upon his pre-emption claim. This, considered in connection with the prompt reconveyance of said homestead to Mooney's wife, leads me to the conclusion that the transaction was made for the purpose of evading the provision of Sec. 2260, Revised Statutes.* This section provides that no person, who quits or abandons his residence on his own land to reside on public land in the same State or Territory, shall acquire the right of pre-emption.

The circumstances which surround the claimant's filing show in my opinion that he has acted in bad faith, and in violation of said Sec. 2260 of the Revised Statutes.

For the reasons stated, your decision is affirmed.

MCCOY vs. HEMERICK.†

Fictitious Sale-Non-Compliance with Law Pending Contest.-A fictitious sale will not remove the disqualification imposed by pre-emption law respecting removal from one's own land in same State or Territory. A timber culture entryman is not excused by pendency of contest from making compliance with legal requirements respecting planting, etc.

Secretary VILAS to Commissioner STOCKSLAGER, June 4, 1888.

I have considered the case of H. H. McCoy vs. Charles Hemerick, involving the N. W. 4 of Sec. 3, T. 4 S., R. 17 W., Kirwin district, Kansas, on appeal by Hemerick from the decision of your office of June 9, 1886, holding his pre-emption entry on said land for cancellation, and allowing the timber culture entry of McCoy to remain intact.

The evidence shows that Hemerick, a short while before he made his preemption settlement and filing on the land in dispute, executed a paper purporting to be a conveyance of his homestead to his brother, but it was not

* BOOTH vs. SHORT.

Pre-emption-Settlement-2260, R. S.-A pre-emptor is not relieved from the inhibition of Section 2260, Revised Statutes, by a prior pretended transfer to his wife of the homestead, from which he removed when he settled on his pre-emption claim.

Secretary VILAS to Commissioner STOCKSLAGER, July 24, 1888. (7 L. D., 69; 15 C. L. O., 136).

+ See Weirick vs. Wilkes, 15 C. L. O., 77; Van Gordon vs. Ems, 6 L. D., 422; 14 C. L. O., 259; Anderson vs. Bailey, 7 L. D., 513.

signed by Hemerick's wife, and his brother, the grantee, did not take possession of the land, but it remained, as before in the use and enjoyment of Hemerick, and soon after Hemerick made his final pre-emption on the land in dispute; his said brother reconveyed to him said homestead tract. This was, evidently, an attempt to evade the law, and I concur in the conclusion of your office," that Hemerick removed from land of his own in the same State to reside on the tract in contest, and that from the inception of his claim he has acted in bad faith." It follows that not only should his said entry be canceled, but that his petition for the return of his purchase money, and application to make a second filing on the land, should be denied.

As to the timber culture entry of McCoy, it appears from the evidence (though not alluded to in the decision of your office), that he had neither complied, nor made any effort to comply, with the requirements of the law as to planting and cultivating trees, and had, in fact, done nothing whatever to the land, although more than seven years had elapsed from the time his entry was allowed, January 2, 1877, to the date of the hearing, April 22, 1884. The pendency of the contest is not an excuse for such noncompliance (Byrne vs. Dorward, 5 L. D., 104; 13 C. L. O., 149).

I am of the opinion, therefore, that the entry of McCoy, as well as that of Hemerick, should be canceled, unless within sixty days he shall submit proof, after usual notice, showing good faith and reasonable compliance with the law.

The decision of your office is accordingly so modified.

DOYLE vs. BRANDELL.

Removal from Land Owned-Evasion.-The removal from land owned, by a party in the same State or Territory and maintaining a temporary residence elsewhere for a period, where it clearly appears that the intention is to take up a residence on land to be claimed under the pre-emption law, is an evasion of the legal inhibition against removal from one's own land to acquire title to Government land under said law (McDonald vs. Fallon, 3 L. D., 56; 11 C. L. O., 168), and a filing made under such circumstances must be canceled.

Secretary VILAS to Commissioner STOCKSLAGER, April 27, 1888.

I have considered the case of Mary Doyle vs. Gustave Brandell, involving the N. E. 4 of Sec. 14, T. 111, R. 72, Huron, Dakota, land district, on appeal by Doyle from your decision holding the filings of both parties for cancellation.

Mary Doyle is a widow of the age of about 70 years; she had made final proof on her homestead entry on lands adjoining this tract early in March, 1884; she left her homestead, thus acquired, and went to reside in Highgate, a neighboring town 6 miles off. There she owned a shanty; she moved into it, and has since resided there. It was while residing there that she attempted settlement March 16, and filed her declaratory statement March 19, about a fortnight after having made the final proof on her homestead entry for the adjoining tract.

At the hearing in this case she was sworn as a witness, and stated in her direct examination :

"I lived on the homestead when I proved up on it. other piece of land after I proved up on the homestead. I went to look at this piece of land.”

I went to take an-
After I proved up

The evidence fails to show why she left her homestead property as soon as she had made her final proof; she still owned it at the time of hearing. The shanty on the tract was moved from her homestead property on to it about March 30th.

If she quitted or abandoned her homestead where she had resided at time

of final proof for the purpose of acquiring the adjoining piece of land-removing to Highgate a few days, intending to change her residence again to the tract in question as soon as her shanty was moved-it is an evasion of the law that forbids one to quit or abandon his residence on his own land to reside on the public lands in the same State or Territory for the purpose of acquiring the right of pre-emption. McDonald vs. Fallon (3 L. D., 56; 11 C. L. O., 168.)

The evidence seems clearly to establish such an evasion. It convinces me that when she quitted her homestead it was her intention to move on the adjoining land, and that when she went to live in Highgate she had her mind made up to return again and establish her residence on this tract as soon as the shanty had been moved there.

Having come to this conclusion, it is unnecessary to inquire into the facts regarding her charge of intimidation.

It is my opinion that she was disqualified to acquire the land by pre-emption, and it is for this reason that I concur in your decision.

The filing of Doyle is held for cancellation.

With the papers in the case is found second final proof submitted by Brandell, which appears to have been received by your office after the transmission of the case on appeal of Doyle. As this was not before you when your decision was rendered, it is returned for such action as you may deem appropriate.

MCDONALD vs. FALLON.

320 Acres Removing from his Own Land.-Where a party conveyed one acre of three hundred and twenty to his infant child and resided with a neighbor three weeks before going upon his pre emption claim, he cannot be considered a qualified pre-emptor. Acting Secretary JOSLYN to Commissioner MCFARLAND, August 1, 1884.

I have considered the case of Thomas McDonald vs. William Fallon, involving the S. W. 4 of Sec. 14, Tp. 29, R. 12, Niobrara, Nebraska, on appeal by Fallon from your decision of November 6, 1883, rejecting his final proofs and holding his filing for cancellation.

Fallon filed declaratory statement August 25, alleging settlement August 12, 1881, and McDonald made homestead entry August 19, 1882. Upon Fallon's notice of intention to make proof and payment, a hearing was held February 16, 1883, at which McDonald objected to his right of entry, alleging, among other things, that he was the owner of three hundred and twenty acres of land in the State of Nebraska, and removed therefrom to reside on the land in question, and was not therefore a qualified pre-emptor under Section 2260 of the Revised Statutes.

It appears from your records that Fallon made homestead entry October 15, 1874, upon the N. W. 4 of Sec. 13, Tp. 29, R. 12 W., in the Niobrara, Nebraska, land district; that final certificate issued thereon June 11, 1881, and that it was approved for patent September 6, 1881. It also appears from the testimony that July 19, 1881, Fallon conveyed one acre of this tract to his daughter Catherine, then under the age of six years, for the nominal consideration of one dollar, and because also, as he states, she was his "first-born" child. This deed remained in his own or in his wife's custody until February 20, 1883 (after the hearing) when it was recorded. It appears also that at about the date of this deed Fallon went to a neighbor's, where he remained for about three weeks-his family remaining at the homestead from whence he went to the land in question to make his alleged settlement, his family or some of them continuing to reside at the homestead.

No satisfactory explanation is made of these transactions, and the conclu