Although it is silent on this question, I think a reasonable construction of the act as a whole, its purpose and intent being considered, warrants the rule against assignment; but being a matter of construction, or more correctly speaking of administrative policy, and a question which has been involved in some doubt, as would appear from the fact that the rule has been changed, the regulation of your office which recognized the right of assignment had, until revoked or overruled, the force and effect of law, so that rights acquired and valid thereunder should be protected. Minor v. Marriott, (2 L. D., 709); Robb's Lessee v. Irwin (15 Ohio, 703); Ohio Life and Trust Co. v. Debolt (16th How., 432); Gelpcke v. City of Dubuque (1 Wall., 206). It was so revoked and a different rule, growing out of a change of interpretation, was established April 15, 1880. Prior to that time the assignees had not only been recognized, but, by the regulations and blank forms issued by your office thereunder, had, in effect, been invited to become such. Assignments of desert land claims to any one assignee, embracing in the aggregate no more than six hundred and forty acres, regularly made prior to that date, should therefore be recognized, and the proof of assignees, when satisfactory in other respects, should be accepted to the extent indicated, patent to issue in the name of the original entryman. As stated in the opening recital of the facts in this case, appellant came into possession of the lands in question by assignment duly made in 1878. The certificate of original entry, given by the register and receiver, on the back of which the assignment in each case was made, contains a clause providing for the recognition of an assignee. The cases presented by this appeal, falling within the exception to the rule now in force prohibiting assignments, your office decision is reversed.

As the question of validity of assignment is the only one before me on appeal, I do not pass upon the merits of the case as to the sufficiency of the proof submitted, but leave that for adjudication by your office in due course of business. It was accepted by the local officers, who issued final certificate and took appellant's money nearly five and a half years ago.

PRACTICE-APPEAL-NOTICE.

AUGUST BERGER.

Notice of appeal and specification of errors must be served upon the opposite party, and in the absence of such service the appeal will be dismissed.

Acting Secretary Muldrow to Commissioner Sparks, September 25, 1886.

On June 8, 1885, your office held the timber culture entry of August Berger, for the NW. of NE. of Sec. 26, T. 103 N., R. 25 W., Worthington, Minnesota, for cancellation, on the ground that said tract had passed to the State under the swamp grant.

From this action of your office Berger appealed, but as notice of appeal and specification of errors was not served on the State as required by Rule 93 of Practice, you held the appeal defective, and acting under Rule 82 allowed the entryman fifteen days within which to cure the defect. On report from the local office that Berger had failed to amend his appeal, after due notice of such requirement, you transmit for my action the said appeal of Berger as originally filed by him.

The appeal is fatally defective under Rule 93, and is therefore dismissed.

CANCELLATION OF ENTRY-RIGHT OF TRANSFEREE.

UNITED STATES v. COPELAND ET AL.

As the special agents' report, on which the order of cancellation was based, disclosed a transfer of the land after the issuance of final certificate, such transferee should have been notified of said order.

Acting Secretary Muldrow to Commissioner Sparks, September 25, 1886.

I have considered the case of the United States v. Florence L. Copeland and John Waldock, transferee, involving Osage cash entry No. 1007 of the N. of the SE. 1, the NE. 1 of the SW. 4, and the SE. 4 of the NW. of Sec. 28, T. 27 S., R. 12 W., made March 31, 1883, at the Larned land office, State of Kansas.

On August 31, 1883, your office canceled said entry upon the report of a special agent of your office, and allowed the claimant sixty days within which to show cause why said entry should be re-instated. No application for re-instatement of said entry was filed by Miss Copeland.

On November 21, 1884, the district land officers rejected the preemption declaratory statement of Ransom S. Bowers for said tracts, and on appeal your office, on January 3, 1885, held that as Miss Copeland has failed to show cause why her said entry should be re-instated, although duly notified of the decision of your office canceling the same, the land in question became subject to entry by the first legal applicant, and the local land officers were directed to receive Bowers's filing as of the date when presented.

On June 30, 1885, your office returned the application for a writ of certiorari, and an appeal from said decision of June 2d, filed by the attorneys of said Waldock, upon the ground that the appellant was not a proper party in the case, and had no standing in his own right.

On July 20, 1885 (4 L. D., 31), this Department considered the application for certification and the affidavits submitted in support thereof by the attorneys of said Waldock, and directed your office to certify to the Department all of the papers in said case, and to suspend all action relative to the filing of said Bowers, or the allowance of proof by him, and in the event that he has been allowed to make entry of said land,

the same should be suspended until further advised by this Department.

It appears from the report of said special agent that Miss Copeland admitted under oath that she never complied with the requirements of the law as to residence and settlement; that she entered said tract under a contract with said Waldock, and had conveyed said land to him by warranty deed, dated April 7, 1883, and that she and the witnesses to the final proof were not sworn by the clerk of the court before whom the proof was made.

Waldock has filed several affidavits denying the truth of these allegations, and insists that he can show that the entryman has complied with the law in good faith, and that Miss Copeland has been induced to make the said admissions by malicious persons, to deprive the transferee of said land, upon which he has placed valuable improvements.

It is quite evident that said entry should not have been canceled upon said agent's report. The Le Cocq cases (2 L. D. 784); George T. Burns (4 L. D., 62); William Johnson (ibid., 397).

There can be no question that under the decisions of the supreme court of the United States and the rulings of this Department, when the entryman has fully complied with the requirements of the law and received the certificates of entry, he can dispose of the land covered by his entry. Myers v. Croft (13 Wall., 291); C. P. Cogswell (3 L. D., 23). And when the entryman has sold the land covered by his entry and the entry is attacked for fraud or illegality, the entryman and his transferee are entitled to a hearing before the proper tribunal to defend, and the burden of proof is upon the party attacking the entry. John C. Featherspil (4 L. D., 570); Henry C. Putnam (5 L. D., 22).

In the case at bar the special agent's report discloses the fact that Miss Copeland had sold and conveyed her interest in said land, and the deed for the same was of record and constructive notice to everybody. Waldock was entitled to notice of the decision canceling said entry. The statements of witnesses, who, after having disposed of the land covered by their entries, deny the truth of their former sworn statements are not entitled to much weight, and should be carefully considered. The affidavits presented appear to be sufficient to warrant an investigation of the allegations contained therein, and you will accordingly direct the local land officers to order a hearing, under the rules of practice, to determine the validity of said entry and the good faith of all parties in interest. It is suggested that a special agent of your office be present, if practicable, to represent the United States. Bowers's filing and proof will remain suspended to await the result of the investigation. Upon the receipt of the testimony and the opinion of the district land officers thereon, you will re-adjudicate the case.

ADJOINING FARM ENTRY-ACT OF MAY 14, 1880.

HALL . DEARTH.

The right to make an adjoining farm entry is not enlarged or modified by section 3 of the act of May 14, 1880.

The general requirements of the homestead law as to residence are not waived by the provisions of said section, though credit is given therein for residence prior to entry.

Secretary Lamar to Commissioner Sparks, September 27, 1886.

I have considered the appeal of M. W. Hall from your office decision of February 23, 1884, rejecting his application to make adjoining farm entry of lots 1 and 2 of Sec. 12, T. 1 S., R. 2 W., M. D. M., San Francisco, California.

It appears that Jacob Dearth made soldier's additional homestead entry for the tract July 30, 1878, on which final certificate, No. 1846, issued.

June 27, 1883, Hall, the appellant, made his application to enter the tract as an adjoining farm homestead. Accompanying his application was his sworn statement that he owned and resided upon an original farm, containing 102.96 acres, which comprised a part of the San Ramon rancho, and that he had resided upon said original farm since July, 1871, and had used the land applied for in connection therewith. His application was refused by the local office, for the reason that the tract cov ered thereby had been finally entered by Dearth as an additional homestead. On appeal from that decision, Hall claimed that he was protected by section 3 of the act of May 14, 1880, and had the superior right to the tract by virtue of his settlement in 1871. The settlement claimed was the cultivation of the tract while he resided on his original farm.

Your office, in accordance with its previous practice, ruled that the right of a claimant to an adjoining farm does not relate back to the date of settlement on the original farm, under the act of May 14, 1880, and therefore approved the rejection of Hall's claim. I concur in that ruling.

The last clause of section 2289 of the Revised Statutes relating to homestead rights provides that—

"Every person owning and residing on land may, under the provis ions of this section, enter other land lying contiguous to his land, which shall not, with the land so already owned and occupied, exceed in the aggregate one hundred and sixty acres."

Under this provision appellant would probably have had a good claim had the land applied for not been covered by an entry at the date of his application.

I do not regard the act of May, 1880, as at all applicable to adjoining farm entries or claims. Section three of that act provides 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."

The manifest purpose of Congress in enacting the law last above quoted was to protect settlers who had gone upon public land with the intention of establishing a home thereon, and who in pursuance of that object had established a residence and made valuable improvements, but who, because the land had not been surveyed, or for any other reason, had been prevented from making homestead entry prior to such settlement.

The general homestead law requires of an applicant seeking to enter thereunder that he make affidavit that his entry is made for the purpose of actual settlement and cultivation; and when he comes to make final proof he must show a residence of five years, except when credit is given for military service.

It is not in my judgment intended by the act of May, 1880, to waive any of the requirements of the homestead law as to residence, but only to give credit for residence prior to entry. Appellant's residence was not upon the tract in question, but was upon an adjoining tract, which he owned. His allegation that although living upon his original farm he, by virtue of cultivation and improvement of the tract in dispute prior to his application to enter the same, acquired a preferred right thereto as a homestead settler, is therefore without foundation in the law invoked.

His claim must consequently rest upon the provision of law contained in Section 2289 of the Revised Statutes already quoted, and unless sustained thereby must fall. But that provision has reference to unappropriated public lands, while the facts show that this tract had been entered and final certificate had issued before Hall offered his application to enter.

Your office decision rejecting said application is affirmed.

TIMBER CULTURE-ONE ENTRY IN A SECTION.

TURI O. SIMLE.

Though two timber culture entries cannot be made in the same section the second entry herein is held intact, it having been made subsequent to the allowance of a cash entry covering the land included within the timber culture entry first of record.

Secretary Lamar to Commissioner Sparks, September 27, 1886.

I have considered the appeal of Turi O. Simle from the decision of your office, dated April 21, 1885, holding for cancellation his timber culture entry, No. 4442, of the N. of the SE. of Sec. 12, T. 151 N., R. 58 W., made October 14, 1884, at the Grand Forks land office, Dakota Territory.