This, in my judgment, is not such a bona fide residence as the law requires. The entryman must have known, when he made his filing, that he would be compelled to reside in Fresno where he was practicing his profession and that he could only make periodical visits to his claim. It is claimed by him in his argument on this appeal that he lived on the land one night and two days in each month for two years. That is, he would drive out from the town of Fresno, thirty-five miles to his claim, stay there over night and return the next day. Conceding all this, yet it is held that mere visits to the land to keep up the fiction of a residence do not constitute a compliance with the law." Strawn v. Maher (4 L. D., 235), West v. Owen (4 L. D., 412).

Following this rule, your decision so far as it affects the claimant's proof is concerned is affirmed.

HOMESTEAD CONTEST-CITIZENSHIP.

LYMAN v. ELLING.

A charge of illegality in a final homestead entry, in that the entryman is not a citizen, must fail if the defect is cured prior to notice of contest, and such action is not induced by the initiation of said contest.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, April 17, 1890.

The question presented by the appeal in this case is whether an alien, who had declared his intention to become a citizen at the date of his entry, but who made final proof and received certificate before taking out his final naturalization papers, can cure the defect by becoming naturealized afterwards, so as to defeat a contest alleging that the entryman is not a citizen, commenced prior to naturalization.

Wilhelm Elling having declared his intention to become a citizen of the United States, made homestead entry of the N. NE. Sec. 34 T. 98, R. 41, Des Moines, Iowa, August 30, 1871. On August 21, 1877, he made final proof and received final certificate. On June 22, 1886, Albert H. Lyman filed contest against said entry charging that "the said Wilhelm Elling is not a citizen of the United States, and has not declared his intention to become a citizen; that his homestead entry No. 5319 was illegal and fraudulent at its inception and his final proof per final certificate No. 4290 Sioux City series, was also illegal and fraudulent." On June 23, 1886, Elling was admitted as a citizen of the United States by the district court of Woodbury county, Iowa, and naturalization certificate was issued of that date. Upon a hearing before the local officers they held his entry should be canceled for want of citizenship; but upon appeal you reversed this ruling, holding that the nat uralization after contest has been commenced "cures the defect in his final proof in so far as it was objectionable for want of record evidence

of his admission to citizenship," and that "there is no right in contestant to require the United States to withhold from this entryman a privilege, which would in the absence of a contest be accorded him in equitable consideration and fair dealing."

I think it may be assumed that the failure of the entryman to attain citizenship before offering final proof, was not from any design to perpetrate a fraud upon the government, but rather from ignorance of the requirements of the law in this particular, and further that if there is no adverse claim he may be permitted to make new proof and to have the entry submitted to the Board of Equitable Adjudication under Rule 24 (General Circular p. 122).

The homestead law authorizes entries of public lands by a person who has filed his declaration to become a citizen of the United States, but Sec. 2291 Revised Statutes, provides that

No certificate, however, shall be given, or patent issued therefor, until the expiration of five years from date of such entry; and if at the expiration of such time, or at any time within two years thereafter, the person making such entry; or if he be dead, his widow; or in case of her death, his heirs or devisee; or in case of a widow making such entry, her heirs or devisee, in case of her death, proves by two credible witnesses that he, she, or they have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit, and makes affidavit that no part of such land has been alienated, except as provided in section twenty-two hundred and eighty-eight, and that he, she or they, will bear true allegiance to the government of the United States; then, in such case, he, she, or they, if at that time citizens of the United States, s hall be entitled to a patent, as in other cases provided by law.

The regulations issued by the Land Department for the enforcement of the law requires that at the date of offering final proof, the entryman shall be required to make a final affidavit in which among other things he swears that he is a "citizen of the United States." This affidavit is a part of the final proof, and unless the entryman has the qualifications and has performed the acts and fulfilled all the conditions. required by said affidavit, he is not qualified to make final proof upon his entry. But if his final proof has been made and final certificate issued thereon, it is not absolutely void because the disability of alienage may be removed by subsequently attaining citizenship.

In the case of Jacob H. Edens (7 L. D., 229) the Secretary saidWithout deciding whether proof made by an alien will be accepted, there is no doubt under the rulings in the cases of Ole O. Krogstad (4 L. D., 564), Mann v. Huk (3 L. D., 452) and Kelly v. Quast (2 L. D., 627), that the defect of alienage was cured when the claimant became a citizen in March, 1886, and in the absence of any adverse claim, his right to the land relates back to the date of his settlement, notwithstanding the fact that he was an alien when it was made.

In the case cited new proof was required for the reason that the final proof was not satisfactory; but if the proof is satisfactory in all respects save that it was at a time when the entryman was disqualified from making proof, it would be validated by subsequent qualification,

because if the right of the entryman relates back to the date of entry, in the absence of an adverse claim it cures all defects or irregularities intervening.

At the date of his entry, Elling was a qualified homesteader by having declared his intention to become a citizen, and no other qualification was required of him during the period of residence and cultivation required by law to entitle him to the land. While the final certificate was improperly issued, yet, as stated by the supreme court in Osterman v. Baldwin (6 Wall., 122), "his present status is that of a person naturalized, and that naturalization has a retroactive effect, so as to be deemed a waiver of all liability to forfeiture, and a confirmation of his former title."

The contestant is not a "claimant or pre-emptor" and the only ground upon which it can be urged that his contest is an adverse claim, is by reason of the fact that if he can successfully contest the entry, he would be entitled to the preference right of entry of the tract under the act of May 14, 1880.

The contest against the entry was filed June 22, and on the day following Elling received his final naturalization papers. The contest affidavit was not served until August 21, 1886, and at that date Elling had become qualified to make final proof. It has been held by the Department that jurisdiction is acquired by service of notice and not by the contest affidavit (Seitz v. Wallace, 6 L. D., 299), and that if the default charged is in good faith cured prior to the service of notice, the contest must fail. Stayton v. Carroll (7 L. D., 198); St. John v. Raff (8 L. D., 552); Hall v. Fox (9 L. D., 153). These decisions are predicated upon the theory that the curing of the default was not induced by the filing of the affidavit of contest.

In this case the contest affidavit was filed in the local office at Des Moines, June 22, and at the same time the contestant made application to have the testimony of witnesses taken at Sibley, Iowa, more than one hundred and fifty miles from the land office. When the contest was received the local officers forwarded it to the General Land Office, and it may be fairly presumed that Elling had no notice of said contest until service was made in Osceola county, where the land is situated and which adjoins the extreme northwest county of the State. As the claimant had cured the default in respect to citizenship prior to service of notice, a contest upon that ground merely can not be sustained and should be dismissed.

From the record in this case, I am satisfied that the failure of the claimant to attain citizenship before making final proof was the result of ignorance of the requirements of the law, and not from any design to perpetrate a fraud. In the first place, there does not appear to be any motive for such conduct, and from the fact that he does not speak the English language, it does not follow that he was informed that citizenship was required before making proof, even if it be true that he was

told in English that he must be a citizen before making final proof. But in his own testimony he swears that nothing was said to him about citizenship.

Your decision is affirmed.

PRACTICE-NOTICE OF CONTEST.

ACKERSON v. DEAN.

A notice of contest must be served in accordance with the departmental rules of practice, and not under the civil procedure of the State.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, April 17, 1890.

I have considered the appeal of Joseph Ackerson from the decision of your office dated June 28, 1888, in the case of said Ackerson v. Ephraim J. Dean, dismissing Ackerson's contest against Dean's timber culture entry for the SE.Sec. 27, T. 108 N., R. 65 W., Mitchell land district, South Dakota.

On October 3, 1885, Dean made timber culture entry for said described tract, and on October 4, 1886, Ackerson initiated a contest against said entry alleging that "E. J. Dean, has failed to break or plow or cause to be broken or plowed five acres the first year after filing on said land, and said failure exists up to present date."

Hearing was ordered and set for November 30, 1886, before the local officers, testimony of witnesses to be taken before the clerk of the district court at Wessington Springs November 22, 1886, at ten o'clock A. M.

At the hour appointed for the taking of testimony contestant appeared in person and by attorney; claimant appeared and asked for an adjournment of the proceedings until two o'clock P. M., to enable him to procure counsel; claimant's motion was allowed, and at two o'clock P. M., the parties appeared in person and by their respective counsel claimant moved to dismiss the contest said motion was based upon his own affidavit, which was filed in the case and marked exhibit "A." He alleges therein that notice of said contest was not served upon him until November 6, 1886; and that before the expiration of the first year he had a portion of the first five acres broken, and prior to the service of the notice of the contest upon him he had the whole of the first five acres broken. The clerk did not pass upon said motion and contestant and three other persons were sworn and testified against said entry; and six persons including the claimant were sworn and testified in defence of the entry.

On November 24, 1886, the clerk transmitted the record and testimony in said case to the local office, and upon examination thereof the register and receiver found that claimant was not legally notified of the contest,

and that as claimant on the hearing day, at the first moment, moved to dismiss the contest because of insufficient notice; the local office had not acquired jurisdiction in the premises. They further found that the testimony was unsatisfactory and set aside the proceedings, and ordered that a new notice of contest be issued upon the affidavit of contest already on file. The respective parties having been notified and no appeal having been taken from said decision, the register on November 1, 1887, issued a new notice of contest authorizing the same clerk of the district court to act as commissioner in taking the testimony of said parties at his office on December 14, 1887, papers in the case to be returned to the local office" on or before December 24, 1887."

On the day appointed for the taking of testimony, contestant appeared in person and by attorney and offered proof of service of the notice of contest upon claimant; said proof was written across the back of the original notice, which was filed in this case and is as follows, viz:

TERRITORY OF DAKOTA, County of Beadle, 88:

Arthur Morrison being first duly sworn (says) that the within notice of contest came into my hand on the 11th day of November, A. D., 1887; that I made due service thereof by delivering to and leaving a true copy of the within notice with Mary J. Ferry, a person over fourteen years of age and in the presence of a member of her family over the age of fourteen years, at the residence of E. J. Dean, the within named defendant, in the City of Huron, Territory of Dakota, county of Beadle, on the 11th day of November, 1887.

The contestant and two of his former witnesses were sworn and testified against the entry. The claimant did not appear either in person or by attorney, and the Commissioner having transmitted the record and testimony to the local office, the register and receiver found in favor of contestant.

On February 10, 1888, claimant filed a motion to dismiss the proceedings for the reason that due service of the notice of the hearing was not served upon him; that at the time of the alleged service of notice, and for some time prior thereto he (claimant) was not residing or boarding in the Ferry House at Huron, but was residing on the SW. of Sec. 27, T. 108, R. 65, adjoining the tract in dispute; and that he had no knowledge whatever of the hearing prior to receiving notice that his said timber culture entry had been "adjudged forfeited." Claimant further alleged, "that up to the present date he has fully complied with timber culture law."

On March 19, 1888, the local officers sustained claimant's motion and ordered that, "All of the proceedings in the foregoing case be set aside, and that new notice under the original affidavit of contest may issue upon application of the contestant."

On April 9, 1888, contestant appealed, alleging that all a notice is issued for is that the parties may appear and defend, which was fully done under the first notice; that the second notice was served in ac