so as to conform to the filings should have been considered to the exclusion of the appeal.

In said motion counsel for the company urge that the entry as made was the result of mistake, for which the register and receiver, as well as the person or persons who made the entry, were responsible, and that the error should be corrected by the Department in the manner suggested by their petition thus securing to the company the benefits of its purchase.

The Department recognizes its right and its duty to correct errors. committed by the local land officers, when properly brought to its attention. There is therefore no difference between counsel and the Department on this question. The only difference is as to the manner or nature of the correction.

The decision under consideration approved the action of your office, holding the illegal entry for cancellation, while the motion for review seeks a correction by amendment in pursuance of an application filed in September, 1884, and this notwithstanding an appeal from your office decision was filed subsequently to said application for amendment. All the facts now presented were before the Department when its decision in the case was rendered, and no good reason appears for changing the conclusion then arrived at. That decision adhered to the rule of the Department, that when an appeal has been filed and accepted in any case, your office has no longer any jurisdiction to further consider such case, and that the only action then proper is to forward the case to this Department for final disposition on the appeal. Under this rule your office could not properly act upon the application to amend filed in this case. The appeal subsequently filed and accepted took away jurisdiction to act on the petition. The Department considered and acted upon the appeal rather than on the petition, which action in my judgment was proper.

The appeal brought the case here. Not only that, but it is a well established rule of law that the filing of an appeal in any appealable case is a waiver of any and all motions which may have been previously filed relative to the decision appealed from. The plea that counsel who filed the petition for amendment did not have notice of the appeal is without force, since both the petition and the appeal were filed in behalf of the same party or parties, but by different counsel, or attorneys. The company can not be allowed to plead want of notice of its own acts.

After a careful consideration of the case it all its aspects, I must decline to grant the motion, and the decision of November 12th is adhered to.

It may here be added that were I to re-open the case and consider the application to amend the entry, I am unable to see how in the face of the record facts and for reasons not necessary to here discuss, any result favorable to applicants could be reached.

PRE-EMPTION-HOMESTEAD ENTRY.

DUNLAP v. RAGGIO ET AL.

In the absence of a legal intervening settlement claim, there is no penalty for failure to make proof and payment, for unoffered land, within the statutory period. The right of a pre-emptor to purchase is not defeated by the adverse claim of a home steader, who alleges residence within less than six months after entry, and fails to show the same.

Acting Secretary Muldrow to Commissioner Sparks, February 28, 1887.

I have considered the case of George Dunlap v. Ernest and Richard Raggio, on appeal by the former from your office decision of July 28, 1885.

On December 13, 1880, Dunlap filed declaratory statement for lots 6, 9, 10 and 11, Sec. 15, T. 4 N., R. 14 E., M. D. M., Sacramento, California, alleging settlement on the 7th of the same month. On April 22, 1884 Richard Raggio made homestead entry for lots 10, 11, 14 and 15, same section, and on the same day Ernest Raggio, his brother, filed declaratory statement for lots 6, 7, 8 and 9, in the same section, alleging settlement on the 20th of that month.

On May 1, 1884, Dunlap published notice of intention to submit proof on June 24, 1884, and cited Ernest and Richard Raggio to appear. All parties appeared and submitted testimony. The local officers found that since the date of Dunlap's settlement, December 7, 1880, his residence has been continuous, excepting such times as his business called him away. That he has at all times since the date of establishing his resi dence thereon, up to the time of this hearing, claimed and considered this land as his home. That his improvements consist of a house, barn and wagon shed, thirty acres cleared, ready for plowing, and fifteen acres plowed, a good brush fence on a considerable portion thereof; total value of these improvements from $300 to $400. The local offi cers further discussed certain absences of Dunlap, but failed to find any evidence of bad faith therein. They say: "We are therefore of opinion and decide that the good faith and intent of the pre-emption claimant, George Dunlap, is thoroughly established; that while the said Dunlap failed to make his final proof within the prescribed time, the circumstances are in his favor, and he should be allowed to enter the land embraced in his declaratory statement. . . As to the Raggios,

the evidence shows that they reside at the town of Sheep Ranch and are engaged in the business of running a store, livery stable, and wood contracting. That it is their evident intention to erect a saw mill on the land embraced within their claims, and the timber thereon is of a suitable nature. That the settlement made by them upon this land is not such a settlement and residence as is contemplated by the homestead and pre-emption law." The local officers recommended that the

entry and filing of Richard and Ernest Raggio be canceled, so far ag they conflicted with the claim of Dunlap.

Your office held that the evidence failed to show that Dunlap had ever established a bona fide residence upon the land, reversed the decision of the local officers, and awarded the land to Ernest and Richard Raggio, subject to their making final proof at proper time.

On the question of the good faith of Dunlap a large amount of testimony was submitted, in some respects conflicting. The testimony was taken before the local officers, and was carefully considered by them, as is shown by their opinion. On a careful examination of the testimony, on this point, I concur with them that Dunlap has maintained a continuous residence under the law, and this conclusion is largely based on the fact that the local officers conducted the examination of the witnesses and therefore had the best opportunity of deciding in cases of conflicting testimony.

The Raggios claim to have settled on April 20, 1884, and to have commenced their actual residence on their respective tracts about May 1st. The testimony related largely to this matter, and after a careful examination of the same, I agree with the local officers that the Raggios, at the date of hearing, resided at the town of Sheep Ranch, and were engaged in business there, and that they did not have a residence on the tracts in question. I am therefore of opinion that no valid adverse claim has intervened, and consequently that there is no reason shown why Dunlap's entry should not be allowed. Dunlap was required by law to make proof and payment within thirty three months from settlement, but in case of failure so to do his claim did not terminate. "The law prescribes no penalty for failure to make proof and payment within the statutory period, beyond rendering the land subject to the claim of the next settler, in order of time, who has complied with the law." (J. B. Raymond, 2 L. D., 659). Inasmuch as it appeared on Dunlap's offer of proof and payment that the Raggios had failed to comply with the law, their claims can form no lawful bar to the entry of Dunlap. (Fideler v. Kurth, 5 L. D., 188). It is true that the question arose within six months after the homestead entry of Richard Raggio, and also true that he was not required to take up his actual residence upon the tract during that period, but inasmuch as he claimed to have established actual residence during that time, and pleaded his residence as a bar to the entry of Dunlap, the whole question of the validity of his claim to the tract was necessarily in issue.

For the reasons stated, the decision appealed from is reversed, the entry of Dunlap will be allowed, if no other objection appear, and the filing and entry of Ernest and Richard Raggio, respectively, will be canceled

OSAGE LAND-PRE-EMPTION-PURCHASE BEFORE PATENT.

UNITED STATES v. JOHNSON ET AL.

Until all of the preliminary acts required by law have been performed by the preemptor he has acquired no right as against the government.

Purchasers after entry and before patent take only an equity and are charged with notice of all defects in their title.

Acting Secretary Muldrow to Commissioner Sparks, February 28, 1887.

I have considered the several cases of the United States v. Daniel Johnson, Henry C. Keefer, Martin Traverse, Martin Hayden, John C. Davidson, entrymen, and Edward Corrigan, transferee, as presented by the appeals of the latter from the decision of your office, dated July 14, 1885, refusing to revoke its former action canceling the Osage cash entries of Johnson, Keefer, Traverse, and Hayden, and holding for cancellation the Osage cash entry of Davidson.

The record shows that Johnson made Osage entry (application No. 3361) November 16, 1882, of the NW. of Sec. 28; that Keefer made entry (application No. 3432) December 7, 1882, of the NW. of Sec. 33; that Traverse made entry (application No. 3383) November 21, 1882, of the SE. of Sec. 23; that Hayden made entry (application No. 3434) December 7, 1882, of the NE. of Sec. 33, and that John C. Davidson made entry (application No. 3650) April 10, 1883, of the W. of the NE., and the W. of the SE. of Sec. 34-all in township 34, S., R. 9 W., Wichita land district, Kansas.

In July and August, 1883, your office canceled the entries of Johnson, Keefer, Traverse and Hayden, upon the reports of a special agent of your office and allowed the entrymen sixty days within which to show cause why their entries should be re-instated.

Hayden was duly notified of your office decision canceling his said entry, but took no action thereon, and your office, on January 28, 1885, closed his case and James E. Talley was allowed to make entry of said land. On May 17, 1884, your office ordered a hearing upon the report of a special agent that Davidson's entry was fraudulent and made in the interest of another.

On March 7, 1885, S. J. Crawford, Esq., entered his appearance in your office in behalf of the parties claiming said lands, filed certain affidavits, waived their right to a hearing, and asked that the several cases be examined on their merits. Your office, on July 14, 1885, considered the several cases and held that the affidavits submitted by the claimants are not sufficient to overcome the proofs of fraud submitted by said special agent. On August 22, 1885, the attorney for the claimants filed an appeal from said decision of your office, upon the ground that the affidavits submitted on March 7, 1885, show conclusively that the entrymen complied substantially with the law governing the sale of Osage lands.

On September 16, 1885, Messrs. Hatton and Rugles, attorneys for said Corrigan, filed in the local land office four separate appeals from said decision of your office, dated July 14, 1885, canceling said entries. Counsel for Corrigan have filed copy of an argument made in the cases of Talley and Talley v. Traverse and Keefer and Corrigan, transferee, on appeal from your office decision, dated December 3, 1884, and decided by this Department on June 3, 1$86, (L. & R., vol. 55, p. 408,) involving the validity of said entries.

It is insisted by the counsel for the transferee that said decisions of your office canceling said entries are void for want of jurisdiction, and that after the register and receiver have accepted the proofs and payment, in whole or in part, from the pre-emptor, the courts of the country are the only tribunals that can inquire into allegations of fraud in the procurement of an entry, and upon proof cancel the same. This question has been repeatedly adjudicated by this Department, and must be considered as well settled against the contention of the appellant.

It is clear that under the decisions of the courts, until all of the prelim. inary acts required by law have been performed by the pre-emptor he has acquired no right as against the government. Frisbie v. Whitney (9 Wall., 189); The Yosemite Valley case (15 Wall., 77); Grand Gulf R. R. & Banking Co. et al. v. Bryan (8 Smed & M., 268); Hutton v. Frisbie (37 Cal., 475); Phelps et al. v. Kellogg (15 Ill., 135); Bird v. Ward (1 Mo., 398); Perry v. O'Hanlon (11 Mo., 585); Lamont v. Stimson (3) Wis., 545).

If there was any doubt of the power of the Commissioner of the General Land Office to cancel the entries when fraudulently made, the exercise of that power for a long time is very persuasive that the juris diction has been properly exercised. Edwards v. Darby (12 Wheaton, 206); Atkins v. Disintegrating Co., 18 Wall., 272, 301); Smythe v. Fiske (23 Wall., 374, 382); United States v. Pugh (99 U. S., 265); United States v. Moore (95 U. S., 760, 763).

It is further insisted by the appellant Corrigan that he is an innocent purchaser without notice, and therefore the cancellation of said entries could not affect his rights. But this contention can not be maintained. All purchasers of lands after entry and prior to the issuance of patents are charged with notice that said entries must be confirmed by your office, and if the entrymen has imposed upon the register and receiver with false and fraudulent proof and thereby obtained a cercate of entry, the purchaser can acquire no better title than the vendor possessed.

In the case of Root v. Shields (1 Woolworth, 340), in the United States circuit court for Nebraska, the court held (Mr. Justice Miller), that parties claiming to be bona fide purchasers will not be protected as such when (1) they purchased before the patent of the government issued, although they had no knowledge in fact of any defect in their title, because they purchased only an equity. (2) When the defect in the title arises out of a rule of law, of which they are bound to take