1883, was to select a tract for a homestead and to make settlement thereon prior to his appointment, as shown by a letter addressed by claimant on October 7, 1883, to the principal clerk of public lands, from which the following extract is taken:

I was largely indebted to you for the suggestion in March, when it was probable that I would be appointed to this office, that I would have a right before such appt, to enter a quarter section of land. I came out here in April, mainly for that purpose, made a selection, built a house and occupied it until I left in May for Washington on business connected with the location of the office. Late in May, after that, I was appointed register. Now, I see in looking at the law, paragraph or Sec. 2287, that it is provided that 'any bona fide settler who has filed, etc., and subsequently appt.' etc. Now, of course, I could not file as the lands were unsurveyed until recently. Plats were rec'd a few days ago, and then I filed, which was the earliest possible to do so, and my filing with a special affidavit has gone forward to Washington, with the others. What I want to trouble you about is, whether I am in danger of a technical difficulty about the filing. I suppose, it not being possible to file, that my squatter's right, with occupancy, would stand for filing until surveys were in, as in the case of any other settler.

This letter was accompanied by the affidavit of claimant, stating that the settlement and improvements were made as above set forth, and to this the Commissioner of the General Land Office, under date of April 22, 1884, replied:

Your homestead entry as an entry made under section 2287 appears regular, and will be allowed to stand, subject to the usual conditions.

On March 15, 1888, Lord gave notice of his intention to make final proof in support of his claim before the register and receiver at Devil's Lake land office on May 2, 1888. Prior to the day on which the proof was to be taken, to wit: April 18, 1888, Lord's term of office expired, and E. G. Spillman, his successor, assumed the duties of register, and Lord made his final proof before Spillman.

The proof appears regular in form. The improvements valued at $583. The estimated value of the land $2000. The land was cropped to wheat each season. In the year 1885, fifteen acres yielded three hundred bushels; in 1886, twenty-five acres yielded six hundred bushels, and in 1887, sixty-seven acres yielded fifteen hundred bushels. In 1888, seventy-five acres were prepared and sown to wheat. Several thousand young trees were planted on the land in 1885, and were growing.

The testimony of claimant in his final proof is fully corroborated by his witnesses.

From the time Lord entered upon the duties of his office, August 1, 1883, until his time expired, he resided at Creelsburg with his family, consisting of himself and wife; he was also necessarily detained at the office until April 30, in closing official matters incident to his official services.

From the foregoing statement of facts, it may be reasonably concluded that Lord's settlement upon the tract in controversy was not made with the bona fide intention and expectation of residing upon it as required.

by law, but for the sole purpose of acquiring the land under section 2287. This is apparent from the admission in his letter above referred to, that when it was probable he would be appointed to office he went to Dakota mainly for the purpose of making a selection of the tract, acting upon the suggestion of a clerk in the general land office that he would have the right to enter a quarter section of public lands, if made before his appointment to office, and, as the law (Sec. 2235, Revised Statutes) requires that "Every register and receiver shall reside at the place where the land office for which he is appointed is directed by law to be kept," it is evident that he knew, at the time of his settlement and entry, that he could not maintain a residence on the tract and at the same time perform the duties of the office of register of the Devil's Lake land office.

Section 2287 of the Revised Statutes, under which Lord contemplated acquiring title to the land in controversy when he selected it and made settlement, is as follows:

Any bona-fide settler, under the homestead or pre-emption laws of the United States, who has filed the proper application to enter not to exceed one quarter section of the public lands in any district land office, and who has been subsequently appointed a register or receiver, may perfect the title to the land under the pre-emption laws by furnishing the proofs and making the payments required by law to the satisfaction of the Commissioner of the General Land Office.

This section is taken from the act of April 20, 1871 (17 Stat., 10), and at the date of the passage of said act and of the revision of the statutes, title could only be initiated under the homestead law by actual entry at the local office. But the third section of the act of May 14, 1880 (21 Stat., 140), provided

That any settler who has settled or who shall hereafter settle on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws, shall be allowed the same time to file his homestead application and perfect his original entry in the United States land office as is now allowed to settlers under the pre-emption laws to put their claims on record, and his right shall relate back to the date of settlement, the same as if he settled under the pre-emption laws.

This act did not enlarge the right given under section 2287, except so far as to allow the claim to be initiated by settlement instead of entry, and I think there can be no question that the settlement of Lord, made April 30, 1883, followed by entry made the day the township plat was filed, conferred upon him as much right to perfect title under section 2287 as if the land had been surveyed, and entry was actually made on that day. In either case, the initiation of the right must have been bona fide, whether by entry as originally provided, or by settlement as provided for by the act of May 14, 1880.

Section 2287 was evidently intended for the relief of settlers who had been appointed to the office of register and receiver after they had made entry of the land, with full expectation and intention of complying with the law as to residence and improvements, by allowing them

to perfect title under the pre-emption laws by making proof and payment to the satisfaction of the Commissioner. From the fact that the law requires that title shall be perfected under the pre-emption law by making payment, it is evident that it was not the intention of Congress to allow a homestead entry to be perfected under the homestead law by persons who by being appointed to the office of register or receiver were prevented from complying with the law as to residence for the time required, or that such appointees, even after a bona fide resi dence had been established, could maintain a constructive residence on the land while engaged in the discharge of his official duties as register or receiver. If it had been intended that such absence should be considered a constructive residence for the period of their official term, it would have provided that title could be perfected under either the homestead or pre-emption law accordingly as the claim was initiated.

But I am also of the opinion that settlement or entry made under such circumstances as are shown by the record in this case, by a person who was afterwards appointed to the office of register or receiver, confers no right upon such person to purchase under section 2287. That section, as before stated, was only intended for the relief of persons who had expended time and money upon a tract of land settled upon or entered under such circumstances from which it could not be reasonably presumed that they did not intend or expect to comply with the law and perform the full consideration required by law of other settlers, by establishing and maintaining a bona fide residence. This is the consideration for allowing such persons, who were afterwards appointed to the office of register or receiver, to purchase the land; a payment of money being required because it was known that from the nature of the em ployment they could not maintain a residence on the land and at the same time comply with the law, which requires the local officers to reside at the place where the land office for which they are appointed is directed by law to be kept.

If the settlement is made, as in this case, merely for the purpose of securing the land as a gratuity, without fulfilling the consideration of residence required by the statute, and knowing at the time that the duties of the office would prevent the maintenance of residence on the land, such a settlement or entry is not bona fide within the meaning of the statute or of the character contemplated by it.

Nor do I think that the opinion of the Commissioner, as expressed in the letter of April 22, 1884, would authorize the Department to allow the claimant to purchase under section 2287, although he may have made the improvements upon the faith of said opinion.

The allowance of an original entry by the General Land Office will not preclude the Department from determining whether the land was legally subject to entry when the case comes up for disposition on final proof. Charles W. Filkins, 5 L. D., 49. Nor will an expression of opinion by the Commissioner of the General Land Office as to the valid

ity of an entry pending before the local office preclude said Commissioner or his successor from a full examination of the same when reached in its regular order, and from ordering a hearing on the merits of the claim. George A. Brock, 5 L. D., 610; Robert Hall et al, id., 174.

Besides, in this case the letter of the Commissioner appears to have been in response to an unofficial communication addressed to the principal clerk of public lands, asking his individual opinion as to the right of the claimant to make entry under the circumstances detailed. The Commissioner had no right to exempt claimant from fulfilling any es sential requirement of the law, but it now being before the Department in its regular order, it will be acted upon as if no such opinion had been expressed, as stated in the case of Brock, above cited.

Being satisfied that the final certificate in this case was improperly issued, and that I have no authority to pass this claim to patent, or to allow a purchase under section 2287, your decision holding said final certificate and entry for cancellation is affirmed. If this claimant is entitled to relief by reason of acting upon erroneous advice given by the land office, it must be by Congress, or by making entry under the second section of the act of March 2, '89 (25 Stat., 854), allowing persons, who have not perfected title under the homestead laws, to make homestead entry of not exceeding one hundred and sixty acres of public land subject to such entry, such previous entry to the contrary notwithstanding.

Should he determine to make a second entry under the act aforesaid, he will be allowed thirty days in which to exercise this right.

HOMESTEAD CONTEST-MARRIED WOMAN-RESIDENCE.

BULLARD ↑. SULLIVAN.

A husband and wife, while they live together as such, can have but one residence, and the home of the wife is presumptively with her husband.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, July 9, 1890.

I have considered the appeal of Mary Anne Haywood, formerly Sullivan, from the decision of your office in the case of Robert L. Bullard v. Mary Anne Sullivan, holding for cancellation the latter's homestead entry for NW. of the SE. and E. of the E. of NW. 4 of the SE., and S. of the SE., and E. of the SE. of SW. 1, and SW. of the SE. SW., Sec. 20, T. 3 S., R. 14 E., Stockton land district, California. The record shows that Mary Anne Sullivan made homestead entry for said tract October 30, 1880, and on September 7, 1886, Bullard initiated a contest against the same, alleging that the said "Mary Anne Sullivan has wholly abandoned said tract; that she has changed her residence therefrom for more than six months since making said entry; that said tract is not settled upon and cultivated by said party as required

by law; that she has never resided upon said land and made it her home."

Thereupon hearing was ordered and had at the local office and from the evidence submitted thereat, it found in favor of contestant and recommended the entry for cancellation.

From this judgment Mrs. Sullivan appealed to your office and you affirmed the findings of the register and receiver and held the entry for cancellation. She again appealed. From an examination of the evidence I find that both parties were personally present and testified at the hearing and evidence shows that when the claimant made her entry she was a widow and the head of a family consisting of two daughters and a son, all under the age of nine years. During the latter part of November, 1880, she built a board house ten by twelve feet in size upon the tract, furnished it with articles of household furniture suitable to her means, and established residence thereon with her family.

Three months and eight days after she made her entry (Feb. 8, 1881), she married Seth B. Haywood, a resident of La Grange, Cal., and went to reside with him at La Grange. In August, 1881, she removed with her husband to a quarter section of land four or five miles from La Grange, commonly called the "Junction." He made his homestead entry for said land December 14, 1881, and which is described as the SE. 1, Sec. 25, T. 3 S., R. 14 E., in the same land district.

Claimant testified that she never intended to abandon her homestead; that she made it for the benefit of her children: that she was never absent from her claim six months at any one time, from the date of entry up to the initiation of this contest; that since her marriage to Haywood and up to the time of the hearing, she lived a portion of each year on her claim, with one or more of her children, and the balance of the time she resided with her husband, and on his claim, and that during such periods as she was personally present on her laud, her oldest daughter kept house for her step-father.

The testimony of both parties shows that the land in dispute is mostly valuable for grazing purposes, and not more than from three to five acres of the whole tract are susceptible of cultivation. Her improvements consisted of her frame house, and a fence enclosing about half an acre. She owned four or five head of cattle, which she pastured on the tract each year; she testified that her house had been burglarized two or three times during her absences, but that she replaced the articles stolen and had been residing in her house on her claim with her son from May, 1886, continuously up to the time of the hearing; that she visited her husband's claim occasionally during said period but only remained for a short time.

It sufficiently appears from the record in this case that both claimant and her husband are endeavoring to maintain separate residences at the same time, so that each by virtue of said residence may perfect title to land covered by their respective entries. This can not be done.