notice, and (3) When the title acquired is absolutely void. See also Kerr et al. v. Watts (6 Wheaton, 160); Carroll v. Safford (3 How., 461); Randall v. Edert et al. (7 Min., 359); Gray et al. v. Stockton (8 Minn., 472); Arnold v. Grimes (2 Iowa, Greene's Rep., 83); 3 Opin., 91 & GGG.

In the case of Whitaker ex rel. v. Southern Pacific R. R. Co., decided July 27, 1880, (2 C. L. L., 919,) this Department held that the words. "bona fide purchasers for a valuable consideration," found in section 2262 of the Revised Statutes, must be understood as having been used according to their well established legal import, as there was nothing in the statute to show that any other sense was intended; that it was well settled that the doctrine of bona fide purchasers for a valuable consideration does not apply to the case of the purchaser of an equity; that the doctrine is used for the protection of purchasers of legal or apparently legal titles; that it can only be used as a defence. It is a mere shield and not a weapon of attack (3 Op., 93); that in all cases of pur. chases of pre-empted lands before the issuance of patents therefor, the rule caveat emptor is particularly applicable; and if the entries are fraudulent or void, the purchasers acquire nothing; and that the benefits of the doctrine of bona fide purchaser under said section 2262 can only be sought and applied in the courts. The following authorities are cited in support of the conclusions: Polk's Lessee v. Wendell (5 Wheaton, 308); Vattier . Hinde (7 Peters, 27); Sampeyreac and Stevens v. United States (ibid., 241); Boone v. Chiles (10 Peters, 179); Carroll v. Safford (3 How., 461); Shepley v. Cowan (1 Otto, 340); Moore v. Robbins (6 Otto, 530); Smith v. Shane et al. (1 McLean, 27); Dupont v. Waterman (10 Cal., 354); Chew v. Barnet (11 Serg. & R., Pa., 3893); Pinson v. Ivey (1 Verger, Tenn., 302); Craig v. Leeifer et al. (10 Tenu., 193); Oakly v. Ballard et al. (1 Hemstead, 476).

The decision in the case of Whitaker (supra) has been uniformly followed by this Department. See cases of Margaret S. Kissack (2 C. L. L., 421) and C. P. Cogswell (3 L. D., 23), where the subject was carefully considered by my predecessor, Secretary Teller,-and the case of R. M. Chrisinger (4 L. D., 347), decided January 25, 1886.

But aside from the foregoing, the power to cancel an illegal entry by this Department is expressly recognized by the act of Congress approved May 14, 1880 (21 Stat., 140), wherein it is provided that the successful contestant shall have the preference right of entry of the tract covered by the entry canceled by his procurement.

The record shows that the appellants through their counsel expressly waived any right to a hearing and asked your office to determine the rights of the parties upon the ex-parte affidavits filed in the case. The testimony is for the most part in direct conflict, but your office found that the affidavits submitted by the appellants were not sufficient to overcome the proof submitted by the special agent of your office, tend

ing to show that said entrymen had never been actual settlers on the tracts claimed by them. If that be true, then the entries were made in fraud of the law, and they should be canceled. United States v. Woodbury et al. (15 L. D., 303); Brake v. Ballou (19 Kansas, 397).

In the cases at bar the entrymen failed to make to make application for a re-instatement of their said entries within the prescribed time after due notice thereof, and the transferee bases his defence upon the want of power of this Department to cancel said entries.

It will be observed, however, that Mr. Crawford, in his appeal, dated August 22, 1885, insists that the affidavits submitted by him in support of said entries show conclusively that the entrymen complied substantially with the law regulating the sale of said lands. The proof in each case was made in accordance with the rules and regulations of this Department relative to entries under the general pre-emption laws. No question is raised by the appellant that the rules and regulations governing such entries do not apply to the entries under consideration. The decision appealed from proceeded upon the theory, which was sustained by the decisions of the Department, that the entryman under the provisions of said acts providing for the sale of the Osage trust and Diminished Reserve lands in Kansas, must show full compliance with the requirements of the general pre-emption laws. But in the case of the United States v. Woodbury et al. (5 L. D., 303), it was held by this Department that "the only condition prerequisite to an entry of these lands is that the purchaser shall be an actual settler with the qualifications of a pre-emptor," and the case of Morgan v. Craig (10 C. L. O., 234), cited in La Bolt v. Robinson (3 L. D., 490), was overruled.

Since the decision of your office was rendered under the construction of the law by the Department, which has since been modified as above indicated, and the affidavits submitted by the special agent are in conflict with those submitted by the claimants, so that it is difficult to ascertain the exact facts concerning said entries, it is deemed advisable that a hearing be had in accordance with the rules of practice, giving all parties in interest an opportunity to be heard and cross-examine the witnesses who may testify against their interests. To that end you will please direct the local land office to order such hearing, to ascertain whether said entrymen were actual settlers at the date of their respective entries and were possessed of the qualifications of pre-emptors. Upon the receipt of the testimony submitted with the opinion of the local land officers, your office will again consider the cases. A special agent, if practicable, should be present to protect the interests of the government.

The decision appealed from is modified accordingly.

HOMESTEAD CONTEST-PRACTICE.

BRANNON v. URIELL.

Failure to submit evidence, on due opportunity offered in the regular course of proceeding, cuts off the right to be further heard on the merits.

Acting Secretary Muldrow to Commissioner Sparks, March 1, 1887.

On July 29, 1880, Louisa Uriell made homestead entry for the NW. ‡ of Sec. 21, T. 104, R. 62, Mitchell, Dakota. In February, 1882, Edward Brannon brought contest against the same on the charge of abandonment. On April 10, the day set for hearing, a motion for continuance on the part of claimant was filed and overruled by the local officers; contestant submitted the testimony of certain witnesses tending to show that claimant had never established residence on the land. Afterwards, on September 20, 1883, the local officers sent out notice to the claimant that they had adjudged her entry forfeited. Thereupon claimant filed a motion to set aside the judgment and dismiss the contest, setting out various irregularities in proceeding. The local officers, on May 3, 1884, ruled as follows: "In order that no question may arise as to the regularity of the proceedings, upon motion of J. K. Doolittle, attorney for contestant, as well as upon motion of said claimant, it is hereby ordered that said contest be dismissed, and that said contestant be permitted to initiate a new contest against the same entry." On the same day contestant filed a new affidavit of contest, also alleging abandonment, and service of notice thereof was acknowledged by attorney for claimant. Hearing was ordered for July 3, 1884. On that day contestant with witnesses appeared and submitted testimony to the effect that no one had resided on the tract in question from the date of entry to May 3, 1884, the date of the initiation of the second contest; that a house was built on the tract in the fall of 1883, but was uninhabited; that there was no cultivation whatever, and that the land remained in a state of nature. The case was then continued to August 9, and on that day claimant filed a motion to dismiss, which was overruled. She was then offered an opportunity to submit testimony, but refused, and took an exception to the order overruling her said motion. The local officers thereupon decided in favor of contestant, and on appeal your office by letter of July 11, 1885, affirmed that decision. Claimant's present appeal sets up many grounds of error, the only ones requiring any notice being as follows: that the local office erred in overruling her motion to dismiss the first contest. That question can not now be raised, for the first contest has been dismissed, and on claimant's own motion. She further urges that it was error to award contestant a right to initiate a second contest on said motion. While it is true that the local officers have no authority to award such a privilege, it is not pretended that any adverse right intervened between the dismissal of the first and the initiation of

the second contest, nor that claimant had in the meantime complied with the law. The present contestant was therefore in the same position as any other applicant for the right of contest, and no harm was done claimant by the order of the local office. The local officers granted her motion to dismiss and of that ruling she can not complain. She says further that she was not present at the hearing on July 3. Whatever may be the fact, she had notice of the hearing and shows no reason for her absence, and is therefore bound by the evidence submitted. In any event, her refusal on August 9, to submit evidence when offered the opportunity in the regular course of proceeding, cut off her right to be heard further on the merits of the case. I find no reason for disturbing said decision, and it is accordingly affirmed.

Allotments under the act of March 3, 1863, were excepted from the Executive order opening the reservation to settlement and entry.

Acting Secretary Muldrow to Commissioner Sparks, March 1, 1887.

I am in receipt of the appeals of Lewis E. Scott, Ida B. Sunderland, Gideon Warner, George F. Bolster, Henry Vodeger, Emil Schindler, and Yokert Kozina, from your decision of August 13, 1885, affirming the action of the local officers in rejecting their applications to make pre-emption filings or homestead or timber-culture entries upon certain lands described by them in the Niobrara land district, Nebraska.

The ground of the rejection of said applications was that the tracts applied for were formerly within the limits of the Santee Sioux Indian reservation, and in each case had been selected by and allotted to individual Indians under the provisions of Executive Order dated February 9, 1885.

These appeals are based substantially on the ground that the allotments were not made under any existing law or treaty. The records of your office, however, show that the land in question is within the Santee Sioux Indian reservation, and that the allotments herein were made under the act of March 3, 1863 (12 Stat., 819), and were duly approved by the President; and no reason is shown why such disposition of the land was not in accordance with said act. I affirm your decision.

HOMESTEAD ENTRY-COMMUTATION PROOF.

WHITCOMB v. Boos.

On the commutation of a homestead entry the plea of poverty, as an excuse for absence from the land, is not consistent with good faith.

Acting Secretary Muldrow to Commissioner Sparks, March 1, 1887. I have considered the case of Leslie C. Whitcomb v. Ferdinand Boos, involving the SE. † of Sec. 7, T. 111, R. 63, Huron district, Dakota.

Boos made homestead entry of the tract described, August 12, 1882. Contest was initiated January 22, 1884. February 19, 1885, final proof was offered; contestant appeared and protested. Hearing on the protest and contest was had April 18, 1884-the allegation being failure to comply with the law in the matter of residence and cultivation. The local officers held that claimant's residence and improvements had been sufficient. Contestant appealed; but it appearing that notice of decision was given him September 18, while the appeal was not filed in the local office until October 29, 1884-forty-one days afterward-the local office and your office rejected the appeal. Your office, however, refuses to consider the decision of the local officers final, holding it to be "contrary to existing laws and regulations" (see Rule 48 of Practice); and you proceed to consider the case upon its merits, in view of the testi mony taken at the hearing.

According to claimant's own testimony, he put up a shanty on the land and first staid there over night January 15, 1883, and the next day returned to Huron with the team he had hired to take him to the traci. He kept a memorandum of the number of times he visited the tract after that, from which it appears that he went to the land four times in February; three times in March; five times in April; in May he broke five or six acres, and was there three days; in June visited the tract twice; in July three times; in August five times; and so on. He says he did not sleep on his claim every time he visited it. One of his visits is thus described by witness Fink: "About the middle of July was the first time I saw Boos; he came to my house and left a part of a velocipede; he said he was going to his claim; he was gone about two hours and came back, and said he was going to Huron."

As bearing upon claimant's good faith, witness Lincoln testifies: "My impression is that he did not put up his house till the last of February; because he came up to work on it, and staid with me over night, and said his six months was up, and he must put up something to make a show."

In short, the testimony is convincing that claimant did not make the tract his home; but that he made his home with his father, in the vil lage of Huron, until he (the claimant) married, and that thereafter he lived with his wife, on the claim of her brother, for whom she worked. There is nothing to indicate that his wife ever went near the tract, from her marriage (in October, 1883,) till the hearing (in April, 1884).