Wright v. Cummings (19 ib., 353), which was a suit to test the valid ity of the title to certain real estate, acquired at a succession sale under the order of the court of probates, the court say:

"It will not be necessary to examine objections taken to the proceedings prior to the date of the order of sale. A purchaser at a probate sale is not required to look beyond the decree recognizing its necessity."

See also Sizemore v. Wedge (20 id., 124); Wisdom v. Buckner (31 id., 52); and Thompson v. Tolmie (2 Pet., 157).

A careful examination of the decisions just cited leads to the conclusion that in the courts of Louisiana the title of Sompayrac could not be questioned, unless it should be shown affirmatively that the district court in assuming to settle up the succession of Alrio was without juris. diction as to the subject matter. As I have before shown, if such is the effect of this judgment in Louisiana, under the provisions of the United States constitution, above quoted, and the said act of 1790, such would be its effect in the United States courts and also in the executive departments of the government. That is to say, at the said succession sale in 1882 Sompayrac purchased the interest, right, and title to this claim of which Alrio died seized, and none other. In other words, he (Sompayrac) merely stands as the representative of Alrio and can claim nothing more than Alrio could were he alive.

Mrs. Reynolds's claim herein, as before stated, has as an initial point the alleged sale of this property by Alrio in 1837. Basing her claim as she does upon a private sale, it will be necessary for her to establish it by satisfactory evidence. If so established, then the scrip in question should be authenticated in her name; if not, then it should issue to Sompayrac. As already stated, your office has not rendered a final decision as to her claim. Questions relative to its validity are therefore not now before me for consideration, and no opinion is expressed concerning them.

I am aware that the conclusion herein arrived at, in reference to dignity of succession sales in Louisiana is at variance with that expressed by Mr. Secretary Schurz in the "Garrett" case, (supra), which has since been followed by this Department as a guide in such matters. But that was merely an opinion upon a state of facts certified by the Commissioner to be correct; and that opinion overruled that of the Commissioner, and also that of the U. S. District Attorney for Louisiana, who had investigated the subject thoroughly in the light of Louisiana law. (See Land Office Report for 1880, p. 195.) The error in the "Garrett" case consists in this that it requires the applicant for scrip who claims under a succession sale to show to this Department all the facts that he was required to show to the court which rendered a judgment in his favor. In other words, it in reality gives no force and effect to such judgment. This, as has been shown by the decisions of the courts before referred to, is clearly erroneous, and should not be allowed to obtain longer here. See also Comstock v. Crawford (3 Wall., 396).

Said "Garrett" case and all other cases in so far as they conflict with the views herein before expressed are accordingly overruled.

The decision of your office upon the questions raised by the appeal of Sompayrac is hereby reversed, and the case is remanded to you that a final decision may be rendered by you in the matter of Mrs. Reynolds' alleged title, and for such further proceedings as may then be rendered necessary and proper in consonance with this decision.

SETTLERS ON RESTORED RAILROAD LANDS.

CIRCULAR.*

Commissioner Sparks to registers and receivers, April 30, 1886.

I have to call your attention to the following act of Congress :

AN ACT for the relief of certain settlers on restored railroad lands.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons who shall have settled and made valuable and permanent improvements upon any odd-numbered section of land within any railroad withdrawal in good faith and with the permission or license of the railroad company for whose benefit the same shall have been made, and with the expectation of purchasing of such company the land so settled upon, which land so settled upon and improved may, for any cause, be restored to the public domain, and who, at the time of such restoration, may not be entitled to enter and acquire title to such land under the preemption, homestead, or timber-culture acts of the United States, shall be permitted at any time within three months after such restoration, and under such rules and regulations as the Commissioner of the General Land Office may prescribe, to purchase not to exceed one hundred and sixty acres in extent of the same, by legal subdivisions, at the price of two dollars and fifty cents per acre, and to receive patents therefor.

Approved January 13, 1881.

In accordance with the provisions of the foregoing act, you are instructed as follows:

1. The act applies to settlements upon odd-numbered sections embraced within railroad withdrawals, whether such settlements and withdrawals shall have been made before or after passage of the act.

2. In order to bring a purchaser within the provisions of the act, he must have actually settled and made valuable improvements upon the land.

3. The settlement and improvement must have been made before the restoration of the land to the public domain.

4. Such settlement and improvement must have been made in good faith and with the permission or license of the railroad company for whose benefit the withdrawal was made, and with the expectation of purchasing from said company the land so settled upon.

5. Only lands settled upon can be purchased under this act, and only the actual settler at the date of restoration can be permitted to make

# * Omitted from IV L. D.

such purchase, and only land in withdrawn and restored odd numbered sections, can be so purchased.

6. The act has no application to persons, who, without actual settlement, may have improved the land, nor to those, who, without actual settlement and improvement, may have purchased the land of the railroad company.

7. Only those persons are authorized to purchase under this act who are not entitled to enter the land under the preëmption, homestead, or timber-culture laws of the United States. When the land is subject to entry under any one of these laws, and the settler is qualified to make such entry, he is authorized to proceed under the law applicable to the case. He can have the benefit of this act only when he is excluded from the benefit of the general preëmption, homestead, or timber-culture laws. But, for example, if the land is not subject to timber culture entry, and the party has exhausted his right to make a homestead or a preëmption entry, or is ineligible to such rights, he is allowed to purchase the land under this act. If he is qualified to make either a homestead, preëmption, or timber culture entry, and the land is subject to the entry he is qualified to make, then he is not allowed to make an entry under this act.

8. Claimants desiring to purchase under this act must make application in writing at the proper district land office within three months from the date of restoration as fixed by public notice; or, where lands have already been restored, within three months from the date of the receipt of these instructions at the local land office; and no final entry under the preemption or homestead laws will be allowed upon such lands until after the expiration of said three months.

9. Entries under this act are restricted to one hundred and sixty acres each by legal subdivisions, and can include no land not embraced within the tract actually settled upon and improved. The tract, to the extent of one hundred and sixty acres, which was intended to be pur chased of the railroad company, is the tract authorized to be purchased of the United States under the act, and other subdivisions of sections not included within such tract can not be taken to make up the quantity of one hundred and sixty acres when a less quantity was embraced within the limits of the land originally settled upon with the permission or license of the railroad company.

10. Every person applying to make entry under this act must make and subscribe the following affidavit.

of, claiming the right to enter the of section, town

ship, range under the provisions of the act of Congress approved January 13, 1881, entitled "An Act for the relief of certain settlers on restored railroad lands," do solemnly that I was an actual settler on said tract at the time of the restoration thereof to the public domain of the United States, to wit, on the day of 18. That prior to said time I had made valuable and permanent improvements on the land; that my settlement was made in good faith and with the permission or license of the railroad company, and with the expectation of purchasing said land from said company; and that I am not entitled to enter, and acquire title to,

said land under the preemption, homestead, or timber culture laws of the United States, for the reason that and that my improvements on said land at the date of the restoration thereof to the public domain consisted of—.

Sworn to and subscribed before me this

day of

188-.

11. The foregoing affidavit may be made before the register and receiver, or any officer authorized to administer oaths in the county in which the lands are situated. It must be supported by satisfactory evidence that the settlement was made with the permission or license of the railroad company, and with the expectation of purchasing the land from said company. The testimony of two competent witnesses will be required, showing that applicant's settlement was made prior to the restoration of the land, and stating the value and extent of his or her improvements.

12. The price of all lands purchased under this act is fixed at $2.50 per acre. The price of all other lands within restoration limits, whether in odd or even-numbered sections, will be $1.25 per acre, unless otherwise specially provided by law.

Approved:

L. Q. C. LAMAR,

Secretary.

DESERT LAND ENTRY-ASSIGNMENT.

HENRY W. Fuss.

Assignments of desert land entries made while the rule allowing the same was in force will be recognized, but not more than six hundred and forty acres may be thus acquired, and on final proof patent will issue in the name of the original entry

man.

Secretary Lamar to Commissioner Sparks, September 24, 1886.

I have considered the appeal of Henry W. Fuss from your office decision of July 22, 1881, declining to accept final proof made by him. upon desert land entries, Nos. 10 and 15, Carson City, Nevada, and holding the same for cancellation.

Briefly the facts relative to these entries are as follows:

The first mentioned (No. 10) was made April 18, 1877, by Henry G. Wingate, upon the W. of Sec. 12, T. 26 N., R. 31 E.

The other (No. 15) was made April 23, 1877, by John H. Thies, upon the E. of the same section, the two entries aggregating six hundred and forty acres.

Both the entrymen named made assigument of their claims, Wingate, under date of July 1, 1878, to Fuss directly, and Thies, under date April 8, 1878, to one Philip Steigelman, who subsequently, to wit, May 9, 1878, deeded to Fuss, the appellant.

On the 30th of March, 1880, Fuss, as assignee, made final proof on both entries, which proof was accepted by the register and receiver, whereupon Fuss made full payment for the land and received final certificate, setting forth that he was entitled to receive patents for the entire six hundred and forty acres.

Your office declined to accept the final proof and issue patent thereon, citing as authority for said action a departmental decision rendered April 15, 1880, in the case of S. W. Downey (7 C. L. O., 26), in which it was held that desert land claims are not assignable under existing law.

Subsequently, to wit, December 1, 1884, my predecessor, Secretary Teller, in the case of David B. Dole (3 L. D., 214,) while adhering to and reasserting the general rule laid down in the Downey case, (supra,) restricted it so as to confine its operation to cases of assignment made subsequently to the rendition of said decision-April 15, 1880,—thus recognizing as valid all assignments made prior to said date; provid. ing, however, that as title to no more than six hundred and forty acres can vest in any one person under the law, so not more than that quan tity can be acquired by one person under an assignment, and further that when final proof is made by assignee the patent will issue in the name of the original entryman, and not in the name of the assignee.

I concur fully in the modification made as above indicated to the general rule, prohibiting assignments of desert land claims. It is most certainly equitable and just, and is, I think, founded in law and good practice, as will more fully appear from the following facts:

The desert land act (19 Stat., 377,) was approved March 3, 1877. On the 12th of the same month, your office issued circular instructions (4 C. L. O., 23), requiring local officers, after proof of the desert character of the land, the filing of the proper declaration, and the payment of a certain sum of money, to issue a certificate to the declarant, stating, among other things, that if within three years therefrom said declarant, "or his assignee or legal representatives," should reclaim the land as required by the act, and pay an additional sum of money, "he or they" should be entitled to a patent for the land.

They also provided that "At any time within three years after the date of filing the declaration and the issue of certificate, the proper party may make satisfactory proof of having conducted water upon the land applied for." Thus, within a few days after the passage of the desert land act, your office recognized the right of assignment under said act, and by formal announcement made provision for those cases in which it should be found that assignment had been made.

The practice thus initiated stood without interruption until April 15, 1880, the date of the decision by the Department in the Downey case (supra).

An examination of the act itself developes nothing which in terms either authorizes or prohibits assignments.