It is clear that if the entryman has never established "bona fide residence" on said tract and his entry is for that reason canceled, then the homestead entry must also be canceled. Greenwood v. Peters (4 L. D., 237). But the decision appealed from states that "it appears that he (Roberts) made his entry December 10, 1883, but established residence and broke ten acres," thus conceding that the entryman established his residence on the land. There is no concealment by the entryman in bis final proof and no evidence of bad faith on his part. Under the circumstances disclosed by the record, the entryman should be allowed to make new proof, showing compliance with the law as to residence, cultiva tion, etc., within a reasonable time. His cash entry will remain suspended, until such proof is furnished.

The decision appealed from is modified accordingly

HOMESTEAD AFFIDAVIT—VOIDABLE ENTRY.

ROE v. SCHANG.

A homestead entry in which the preliminary affidavit was not made before the clerk of the court in the county where the land is situated, but before the clerk of the court in an adjoining county, is voidable only, and the defect may be cured by proper supplemental affidavit.

Permission to file such affidavit is accorded the defendant herein, as the sufficiency of his original affidavit was not an issue in the contest and his good faith is apparent.

Acting Secretary Muldrow to Commissioner Sparks, February 5, 1887.

I have considered the application of Nelson C. Roe for a review of departmental decision, rendered November 13, 1886, in the case of Nelson C. Roe v. Quirin Schang, in which the decision of your office affirming the action of the local land officers in dismissing Roe's contest against Schang's homestead entry No. 5727 of the S. of the NE. of Sec. 8, T. 6 N. R. 66 W., made June 14, 1884, at the Denver land office, in the State of Colorado, was affirmed.

The record shows that Roe initiated a contest against said entry, notice was issued charging abandonment, and testimony was taken before the proper officer on February 19, 1885. Upon the evidence submitted the register and receiver found that the claimant had acted in good faith; that the allegations of the contestant were not sustained, and that the contest should be dismissed. On appeal, your office, on May 26, 1885, affirmed the action of the local land officers and dismissed said contest. Thereupon, the contestant appealed to this Department and the decision of your office was affirmed.

It does not appear that a single issue is raised in this motion that was not presented to the Department when said decision was rendered

The applicant has appended to his motion certain letters alleged to have been written by the defendant, but it does not appear that they relate to the land in controversy.

The affidavit of contest charged abandonment, change of residence for more than six months and failure to settle and cultivate as required by law, and the notice issued summoned the defendant to answer to the charge of abandonment. There was evidence submitted relative to said charges upon both sides, and since the testimony is conflicting and the decisions of the local land officers, your office, and the Department all sustain the good faith of the entryman, and hold that the contest. ant has failed to sustain the charges made against said entry, the decision, so far as relates to these issues, must remain unchanged. The motion, however, presents another serious question, which deserves consideration.

The third ground upon which said motion is based is as follows: "It was error not to order the entry canceled, on the ground that it was sworn to before the clerk of the court in and for Larimer county, when in truth and in fact said land is in Weld county."

The affidavit shows that it was executed before the clerk of the district court for Larimer county, Colorado, and it appears that the land in controversy is in the county of Weld.

Section 2294 of the Revised Statutes of the United States provides that, "In any case in which the applicant for the benefit of the homestead, and whose family or some member thereof is residing on the land which he desires to enter, and upon which a bona fide improvement and settlement have been made, is prevented by reason of distance, bodily infirmity, or other good cause, from personal attendance at the district land office, it may be lawful for him to make the affidavit required by law before the clerk of the court for the county in which the applicant is an actual resident, and to transmit the same with the fee and commissions to the register and receiver."

In the case at bar, it is not claimed by Schang that any member of his family, other than himself, was residing on said land, hence a strict compliance with said section necessitates the making of the affidavit before the clerk of the court of the county where said land is situated. Said entry is not, however, to be considered void, but rather voidable, capable of being perfected by a supplemental affidavit made before the proper officer. The insufficiency of said affidavit was not put in issue in said contest, nor was it alleged in the appeals from the local land officers or your office. This Department unquestionably has the power to cancel an entry for good cause shown on appeal, even when the cause is not alleged in the affidavit and notice of contest. Smith v. Brandes (2 L. D., 95); Condon v. Arnold (ibid., 96); Murphy v. Longley et al. (4 L. D., 239). But it will be observed that such action is based upon the theory that in all contests the government is a party in interest, and whenever the evidence shows that a party is seeking to acquire title to

the public land fraudulently, the entry will be canceled, even though fraud is not specifically charged by the contestant. Lec v. Johnson (116 U. S., 48).

Since it has been decided by the local land officers, your office, and the Department, that the entryman has acted in good faith, and there is no sufficient reason shown for changing that ruling upon that point, there does not seem to be any valid objection to allowing Schang to make a supplemental affidavit before the proper officer curing the defect above indicated. You will therefore direct the local land officers to advise Mr. Schang that he will be allowed thirty days from receipt of notice hereof within which to file said supplemental affidavit. Said departmental decision is modified accordingly.

RAILROAD GRANT SELECTION-FINAL PROOF.

NYMAN . ST. PAUL M. AND M. RY. Co.

Selection of a tract within the granted limits will not confer title if the land was not granted; but while the selection remains of record entry of the land should not be allowed.

When final proof is offered for land covered by an adverse selection, the party making such selection is entitled to special citation.

Acting Secretary Muldrow to Commissioner Sparks, February 7, 1887.

I have considered the case of Charles Nyman v. the Saint Paul, Minneapolis and Manitoba Railway Company, transmitted by your office letter, dated December 10, 1885, in accordance with departmental instructions, dated November 23, 1885.

The record shows that said tract is within the granted limits of said company, and that your office, on February 5, 1885, rejected its claim to the NE. of Sec. 3, T. 117 N., R. 29 W., in the Benson land district, State of Minnesota, for the reason that said tract was covered by homestead entry No. 1111 at the date when the right of the State attached to the odd numbered sections granted, to wit, on March 3, 1865. Fuller made said entry on November 18, 1864, which remained of record until May 1, 1872. On June 5, 1873, Nyman offered his pre-emption declaratory statement for the S. of said quarter section, alleging settlement thereon March 14, same year, and Peter Asp offered to file his pre-emption declaratory statement for the N. of said quarter section, both of which were rejected by the local land officers because of conflict with the right of said company, and the parties duly appealed from said action.

An inspection of the records of your office shows that on May 26, 1880, said company selected said NE. --which your office seems to have overlooked-and the selection was posted on August next ensuing. On November 15, 1883, Nyman made homestead entry No. 11,538 of the N.

and Asp made homestead entry No. 11,539 of the S. of said section, each filing an affidavit alleging that a mistake had been made in the description of the land embraced in his said declaratory statement and that he was actually residing upon the land which he sought to enter. On December 18, 1883, Nyman gave due notice of his intention to make final proof before the proper officers on January 31, 1884, and on the date last named he offered his final proof, showing continuous residence on the land since November, 1873. The proof was accepted, and on March 15, 1884, final certificate No. 6135 was issued thereon. Your office held that since the railroad company had failed to appear at the time and place mentioned in the published notice for making final proof and contest Nyman's right to make said entry, it thereby waived all right to appear afterwards and assert a claim to the land adverse to him. Said decision is based upon the departmental decision in the case of the Atlantic and Pacific Railroad Company v. Andrew J. Forrester (1 L. D., 431).

It is strenuously insisted by the company that said decision of your office is erroneous in holding that Fuller's said entry excepted the land covered thereby from said grant, for the reason that the papers show that Fuller, at the time he made said entry, was in the military service of the United States, and it does not appear that his family or some member of his family was at the time residing on the land; and (2) that, as the record shows that said company had made a selection of said quarter section, which was posted upon the records of your office, it was error to hold that the company waived any right by not appearing at the time and place mentioned in the published notice, for the reason that there was no special notice served upon the company to appear at that time and contest Nyman's right to the land.

The record shows several irregularities in the proceedings which should not have been allowed. If, however, it shall appear that said section was excepted from the grant to said company, these irregularities are but errors without injury so far as its rights are concerned.

The contention that Fuller's entry, being intact at the date when the rights of the company attached, did not except the land covered thereby from the grant, cannot be maintained. It has been repeatedly ruled by this Department adversely to the claim of the company and may now be considered well settled. Hastings & Dakota Railway Company v. Graham (1 L. D., 380); St. Paul M. & M. Ry. Co. v. Forseth (3 L. D., 446); same company v. Leech (ibid., 506); Northern Pacific R. R. Co. v. Urquhart (4 L. D., 421).

Again, the selection of said company should not have been allowed, on account of the pending appeals from the decision of the local land officers. St. Paul M. & M. Ry. Co. v. Paulsen (4 L. D., 232).

The selection could give the company no right to land within its granted limits which had never been granted. When, however, said selection had been allowed and posted upon the records of your office,

the homestead entry should not have been allowed until the selection had been canceled.

The Forrester case (supra) is not authority for the case at bar. Where there is a selection of a tract of land of record and a homesteader applies to make proof for the same tract, the party making such selection should be specially cited to appear at the time and place where the final proof is to be offered. Since, however, in this case it appears that said tract was excepted from the grant for the benefit of said company, said selection should be canceled and the entry passed to patent. The decision appealed from is modified accordingly.

TIMBER CULTURE CONTEST-NOTICE.

RABUCK v. CASS.

The heirs of a deceased entryman are entitled to notice in case of contest against the entry, and the service of such notice must be affirmatively shown by the contestant.

Acting Secretary Muldrow to Commissioner Sparks, February 7, 1887.

On January 6, 1882, William S. Rabuck initiated contest against the timber culture entry of Benjamin F. Cass for the SE. 4 of Sec. 6, T. 111 N., R. 61 W., Huron, Dakota, alleging failure to comply with the law. Hearing was set for October 3d following, and on default of contestant the case was dismissed. Afterwards, by letter of April 7, 1884, on petition of Rabuck your office re-instated said contest. At the date of the re-instatement of the contest, claimant was dead, and accordingly Rabuck filed a supplemental affidavit, dated April 16, 1884, alleging that claimant and his heirs had failed to comply with the law. Notice issued, and service was had by "showing" the writ to the widow of claimant, and leaving a copy of the same at her residence. Testimony on the part of contestant was taken, and the local officers recommended the cancellation of the entry. No appearance was made on behalf of the defense. Your office, by letter of April 9, 1885, reversed the action of the local officers and dismissed the contest. Rabuck appealed.

It is clear that the service of notice was not properly made. Upon the death of the entryman, the law casts upon his heirs the burden of showing compliance with the law. As a consequence, they are entitled to notice of a contest based on want of compliance with the law, and the service of such notice must be affirmatively shown by the contestant. The service is therefore set aside together with all subsequent proceedings. It does not seem necessary however to dismiss the contest, as the error can be cured by a new service, in accordance with law and the rules of practice.

Said decision is accordingly modified.