HOMESTEAD ENTRY-RELINQUISHMENT.

CLEVELAND v. NORTH.

A relinquishment of an entry, framed in terms of absolute and unconditional surrender of all rights claimed thereunder, is not limited or modified in its operation by the written statement therein that such relinquishment is made for the purpose of making a new entry in lieu of the one relinquished.

Where the evidence is conflicting, concurring decisions of the local and general land offices, ou questions of fact, are generally accepted as conclusive by the Depart

ment.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, September 26, 1890.

I have considered the case of Spencer I. Cleveland v. William North upon appeal by both parties from your office decision of February 12, 1889, holding for cancellation the pre-emption declaratory statement of said North, and denying the priority of said Cleveland's homestead claim and refusing to re-instate said homestead claim for the NE. † of the NE. and the S. of the NE. 4, and the SE. of the NW. 4, of Sec. 10, T. 10 S., R. 19 W., Wa Keeney, Kansas, land district.

The record shows that on the 15th day of September, 1884, William North filed his pre emption declaratory statement for said land and on the 20th day of October, 1884, Spencer I. Cleveland made homestead entry of the same tract which, on the 30th of January, 1885, wås canceled by relinquishment.

On the 3d day of February, 1885, said Cleveland filed his affidavit of contest against said North's pre-emption claim, alleging as grounds:

I. That he, Cleveland, is in possession of aud residing on said land and has valuable improvements thereon.

II. That at the time of his alleged settlement on said lands, to wit, September 11, 1884, North was not a qualified pre-emptor, that he was then residing on a tract, of school lands as a settler under the school lands of Kansas, and that he has since proved up and acquired title to said school lands.

III. That he fraudulently obtained a relinquishment from complainant of his said homestead No. 7078 which he avers is fraudulent and which was never delivered by affiant to North.

IV. That claiming said land as a pre-emptor he, North, had then forcible possession of it in violation of law. That his H'd claim is prior and superior to that of North's D. S., and asks permission to prove it.

This application was rejected by the local officers and upon the appeal of North to your office, you, after considering the case directed the local officers to order a hearing on said contest. This they did and set the hearing for March 18, 1886, at which both parties appeared and introduced their evidence. Considering the same the register and receiver found that North was not a qualified pre-emptor and that Cleveland's homestead right has been forfeited; first, by failure on his part to establish and maintain a residence on the land, second, by sale and relinquishment.

From their decision an appeal was taken to your office where on the 12th day of February, 1889, the decision appealed from was modified by holding that said contest "should not be dismissed, because of the interest of the government hearing." And your office further found that while all of the allegations of the complaint have not been proven, a sufficient number have been to sustain it as against North. Cleveland is allowed no preference right of entry, however, because he deliberately relinquished all the right he had in said land. Your decision is, therefore, modified as above indicated. The declaratory statement of William North is hereby held for cancellation, the priority and superiority of Spencer I. Cleveland's homestead claim denied, and its re-instatement disallowed.

From your office decision both parties appeal.

In view of the conclusion I reach in the case, after examining the entire record, I do not deem it necessary to enter into a discussion of the several errors assigned by the respective parties; however, there is one which seems to require some discussion in order properly to meet the claims urged. It is the second error assigned by the appellant Cleveland, which is in effect: That your office erred in finding from the evidence that plaintiff ever made an unconditional relinquishment or ever delivered such relinquishment. All the witnesses agree that a relinquishment was made, but it is claimed and strenuously insisted upon by counsel for Cleveland, that it was conditional, and that the condition was struck out without the knowledge or consent of the maker. Said relinquishment was written upon, the back of the receivers' duplicate receipt for Cleveland's entry and duly acknowledged. It was introduced in evidence and read as follows:

I hereby relinquish all my right, title, and interest in and to the within described tract of land to the government of the United States.

Then follows the following words through which a pen with red ink has been drawn: "For the purpose of making a new entry in lieu of his said homestead No. 7078."

With these words considered as a part of the relinquishment it is hard to conceive how it could have been framed in more absolute and unconditional terms. The language preceding the words so stricken out, clearly constitute an absolute and unconditional surrender of all right, title, and interest in and to the land.

The words stricken out do not in any way modify, suspend, defeat, or limit the relinquishment. On the contrary, they simply express the purpose, or intention to do something in the future, to wit, to make a new entry in lieu of the one relinquished. In no sense could the words stricken out be held to attach a condition to the relinquishment preceding them.

It is claimed that the relinquishment was never delivered by Cleveland, and therefore, was not binding on him; on this point the evidence is conflicting, the local officers and your office concurred in finding against him, such finding will be accepted as conclusive by the Depart ment. Chichester v. Allen (9 L. D., 302); Conley v. Price (9 L. D., 490).

I have carefully examined all the evidence in the case, which is quite voluminous, and I find the facts to be substantially as stated in the decision appealed from and I find no reversible error in your conclusion, or reason for disturbing your judgment. It is, therefore, affirmed.

PRACTICE-CERTIORARI-AMENDMENT.

PETERSON v. FORT.

An application for certiorari, denied on account of its informality, can not be amended but is no bar to a new application.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, September 30, 1890.

This Department is in receipt of a letter from John . Hickox jr., transmitting an affidavit which he asks to have considered, nunc pro tunc, in connection with the application for certiorari, in the case of Catherine Peterson v. George W. Fort.

The decision of September 4, 1890 (11 L. D., 238), denying the application is not a bar to a new application as the petition was not consid ered on its merits. There is nothing, however, before this Department, whereof to make amendment. He will be allowed to file new applica tion, and upon the same being filed, with proof of notice to the adverse party of the same, it will receive due consideration.

Please notify Mr. Hickox hereof.

PRACTICE-AFFIDAVIT OF CONTEST-CONTINUANCE.

GEBHARD V. CONLON.

The dismissal of a contest is not warranted by the fact that the affidavit of contest is not dated.

The continuance of a case from day to day, with the knowledge and consent of the parties thereto, precludes subsequent objection to such action.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, September 30, 1890.

The record in the case of Henry D. Gebhard v. James Conlon shows that on April 18, 1881, Conlon made homestead entry of the NE. 1, Sec. 2, T. 137, R. 55, Fargo, Dakota.

September 30, 1886, Gebhard fuitiated contest against the same, alleging that Conlon had wholly abandoned said tract; had changed his residence therefrom for more than six months since making the entry; that said tract was not settled upon and cultivated as required by law and that he had never established a bona fide residence on said land. This affidavit of contestant is without date.

The affidavit of the corroborating witness thereto is dated September 29, 1886. The notice to claimant bears date September 30, 1886, and is made returnable November 9th of the same year.

On said last date both parties appeared, attended by counsel, and defendant's attorney moved to dismiss the contest because the affidavit of Gebhard was not dated. This motion was overruled by the local officers, and exceptions taken thereto.

The record shows no further action in the case until November 12th, three days later, at which time the attorney for the defendant filed a motion to dismiss the contest for want of prosecution. This motion was overruled, and exceptions noted.

The testimony was then proceeded with, and, after plaintiff's witnesses had been examined, counsel for defendant moved to dismiss the contest, because the allegations thereof were not sustained by the testimony offered on the part of the plaintiff. This motion was also overruled, and exceptions duly taken by defendant.

The defendant's counsel chose to stand upon these three motions, and LO witnesses were introduced nor testimony submitted by him.

Some time later (the exact date not appearing), the register and receiver recommended the cancellation of the entry. The parties in interest were notified of this decision February 7, 1887, and Conlon duly appealed, and your predecessor by his letter of February 13, 1889, reversed the action of the local officers and dismissed the contest, and now the plaintiff, Gebhard, appeals to this Department.

Your office decision is based upon the insufficiency of the testimony to support the allegations of contest and sustains the action of the register and receiver in overruling the first and second motions above set forth.

This action of the local officers was right. The objection that the affidavit of contest was not dated is purely technical and of no force.. The affidavit is in the nature of information to the register and receiver that the law is not being complied with, and is the basis of notice to the claimant in default. The notice is the warrant that "recites the offense," and informs the claimant of the charges against him, and gives jurisdiction to the local officers. Seitz r. Wallace, 6 L. D., 299. This notice was properly dated.

The motion to dismiss for want of prosecution was based on the following facts, as appears from report of the register and receiver:

On the return day of the complaint (November, 1886,) all parties herein appeared, with their counsel. The case of Henry Dratt v. John J. Coulon was pending before the local officers, and was set for hearing on the same day and at the same hour. For some reason, presumably by consent, the case of Dratt v. Conlon was taken up, and the trial occupied three days time, not being completed until the 12th of November. The attorneys for the defendant herein were also the attorneys for John J. Conlon, and were present in court attending to his interests in his

said trial, during which the case at bar was of necessity held in abeyance, awaiting the determination of the case of Dratt v. Conlon, which occupied the attention, not only of the officers, but of the lawyers as well, the same lawyers being employed in both cases. While the Dratt and Conlon case was thus being tried, no entry was made on the docket or trial record of the office in the case at bar, and because of the absence of an entry of continuance to a day fixed, or from day to day, during the pendency as aforesaid of the other case, the attorneys for Conlon in the Gebhard v. Conlon case, on the third day and during the progress of the Dratt-Conlon case, moved to dismiss the case at bar for "want of prosecution," because, I presume, the case had been set for the 9th of November, and the 12th of November had arrived and it had not yet been taken up for trial. The motion, considered in connection with the circumstances under which it was made was frivolous and did not deserve to be entertained by the officers. The attorneys who filed it had been in court during all the time the other case had been on trial, participating therein, and had raised no objection to the disposition made of the case at bar. No rights of the defendant were prejudiced thereby, and if it were necessary, under the circumstances, to note on the trial docket (which I do not hold it to be) such continuance from day to day, the fact that this was not noted is not the fault of contestant, and such continuance was had with the full knowledge and consent of defendant's attorneys, and they should not thereafter be heard to object. Smith v. Johnson, 9 L. D., 255.

CIRCULAR-ENTRY BY EMPLOYÉ OF THE GENERAL LAND office.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., September 15, 1890.

To the Officers and Employés of the Land Department.

GENTLEMEN: Section 452 of the Revised Statutes provides that—

The officers, clerks, and employés in the General Land Office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public land; and any person who violates this section shall forthwith be removed from his office.

The Honorable Secretary of the Interior, in the case of Herbert McMicken et al. (10 L. D., 97; 11 L. D., 96), has decided that the disqualification to enter public lands, contained in said section, extends to officers, clerks, and employés in any of the branches of the public service under the control and supervision of the Commissioner of the General Land Office in the discharge of his duties relating to the survey and sale of the public lands.

In accordance with said decision, all officers, clerks, and employés in the offices of the surveyors-general, the local land offices, and the Gen