5th. That you erred in holding the pre-emption filings of the said claimants for cancellation.

Without considering the above specifications of error separately, or here reviewing in detail the testimony in the case, which is quite voluminous, I may say that a full and careful examination of the whole record furnishes nothing which in my judgment warrants a conclusion different from that arrived at in your decision.

It is strenuously urged in behalf of appellants that there is no evidence of fraud or bad faith on the part of the pre-emption claimants; that they having furnished, in accordance with the law and regulations of the Land Department, the requisite and customary final proofs, are entitled to final certificates, and I am asked to direct that such certificates issue.

If there were no other question than the acceptance of the proofs on their sufficiency, it would not, I take it, be seriously contended that such proofs must as a matter of course be accepted and certificates issue thereon, simply because the proofs are technically in form, though for one or more reasons they are deemed unsatisfactory by the Land Department. But more than that is here involved. The good faith of the pre-emptors has been attacked, and you find that fraud has been perpetrated in connection with these filings and proofs. It is objected that your decision relies upon the testimony of James Smart, who had made a filing in the same neighborhood and under the same circumstances as the appellants, and C. E. Brown, a member of the lumber company, utterly ignoring the testimony of the nineteen claimants who made their final proofs. It does not appear that the evidence of bad faith now rests upon the testimony of any one or two persons. Smart in view of the time, and the circumstauces under which his own filing was made, was in position to testify knowingly that the filings by the appellants, as well as his own, were made under an arrangement with and for the benefit of the John Martin Lumber Company. He did so testify. Though subjected to a long and searching cross-examination, his testimony was consistent throughout. More than this, he is now substantially corroborated by nine of the nineteen men who offered final proofs, and who now say that their respective filings were made not for their own benefit, but that they were hired to make them by C. E. Brown, a member of the John Martin Lumber Company. What these nine parties admit is just what Smart had testified to. This goes far to strengthen his testimony as to the remaining ten claimants. If his statements are shown to be true as to nine of the nineteen pre-emptors, a very strong reason is presented why full credence should be given to his statements as affecting the remaining ten. His testimony stands unimpeached and to a great extent corroborated and sustained not only by direct testimony, but by admissions of the claimants and their mortgagees, and by facts and circumstances which in themselves point very strongly in the direction of fraud, as tending to show that these pre-emptors did not

settle and file upon these lands in good faith for the purpose of acquir ing them for themselves in accordance with the letter and spirit of the pre-emption law, but that their intention was to secure them for the benefit of another, pursuant to an arrangement to that end.

What are some of these circumstantial facts?

The claims were all prepared and presented by one attorney, who was also attorney for the lumber company. He by his personal check paid the publication and land office fees necessary in making final proof in all the cases, though the money had not been advanced to him so to do. The filings were all made on the same day. The final proofs were also all made on the same day, the claimants testifying for each other. In nearly all the cases now here on appeal one or more of those who have admitted their bad faith and the fraudulent character of their claims, appeared as witnesses on final proof.

All of the pre emptors are single men, and were found to be absent from their respective claims immediately or soon after their offer of final proof.

The mortgages are for sums ranging from $900 to $1,200, in each instance. These amounts, if not nearly or quite the full value of the lands upon which the mortgages were given, are far in excess of the cest to the claimants of said lands, since their improvements are slight and the government price (not yet paid) is only $200 in each case, and, in view of the alleged poverty and evident want of thrift on the part of the claimants, seem entirely beyond their ability to pay, even if they so intend. Said mortgages, therefore, virtually amount to a transfer by deed of the claimants' interest in the lands to the mortgagees, although final certificates have not issued. These and other circumstances, while they may not in themselves, taken singly, constitute evidence of fraudulent intent, when considered in their relation to each other and in connection with the testimony in the cases, do much to aid to a correct judgment on said testimony.

It is urged, however, by counsel that the testimony of the nine claim. ants, in which they admit bad faith, is not entitled to consideration, in its bearing either upon their own claims or those of the others, their associates, because they contradict their own corroborated testimony taken on final proof; that, the mortgages having been taken on the faith of their first statements, to accept their second statements as true and to cancel the entries would be to allow them to defraud their creditors, the mortgagees.

To these suggestions the answer is that the government deals only with the claimants, and can not undertake to look beyond them to ascertain whether in attempting to defraud the government they have or have not at the same time wronged some one else. The mortgagees were presumed to know, and it appears did know, the status of the lands and the character of the claimants' title thereto. The transactions through which they assert an interest in these claims were solely

between them and the claimants, and were at their own risk. The contradictory statements of the nine claimants can not be regarded as even neutralizing their testimony, in view of the fact that their first statements were those of interested parties testifying in their own behalf, while their later statements are adverse to their interests as claimants. While their admissions and testimony bear more directly on their own individual claims, which are considered and disposed of in another decision on an application for certiorari, they are, as has already been indicated, not without weight in the consideration of these claims in which appeal has been allowed, when it is remembered that all the claimants were so closely associated in the matter of making and attempting to prove their claims as to render the whole proceeding practically one transaction, so that the proof or rather the admission of fraud as to the nine claims (ten including Smart's which was filed on the same date as the others, but relinquished before final proof) tends strongly to prove fraud as to the other ten.

Upon a full examination of the record and a careful consideration of all the evidence, direct and circumstantial, I am convinced of the utter want of good faith on the part of these claimants and affirm your decision.

TOWNSITE-RIGHT OF PRE-EMPTION.

LOVELL . MAYNE.

The preferred right to purchase a lot is accorded to the actual settler thereon, and such settler may buy an additional lot upon which he has substantial improve

ments.

Acting Secretary Muldrow to Commissioner Sparks, August 12, 1886.

I have considered the case of Thomas Lovell v. Meadard Mayne, involving Lot 5, Block 20, townsite of Ketchum, Hailey, Idaho, land district, on appeal from the decision of your office of May 7, 1885.

It appears that on June 27, 1882, Mayne filed declaratory statement under Sec. 2382 of the Revised Statutes for Lots 5 and 7, Block 20, in the townsite of Ketchum, claiming settlement on June 22, 1882. On August 1, 1883, he made final proof and payment for the same and received cash entry certificate therefor.

On July 10, 1882, Lovell filed declaratory statement for Lot 5, Block 20, and Lot 3, Block 13, claiming settlement June 30, 1882.

No protest seems to have been filed by Lovell at the time Mayne made final proof; but on November 30, 1883, a rule was laid upon the former to show cause, within sixty days why patent should not issue to the latter. On the showing thus made a hearing was ordered and had at the Hailey land office on March 3, 1884.

On the testimony then submitted, the register and receiver recommended the cancellation of Mayne's cash entry as to Lot 5, and that

Lovell's declaratory statement be allowed to remain of record subject to his future compliance with the law. On appeal by Mayne your office reversed the finding of the local officers, held for cancellation the declaratory statement of Lovell, and held the cash entry of Mayne intact. From this judgment Lovell, in turn, has appealed, and on his appeal the case is now before me.

Section 2382 of the Revised Statutes, after providing for the location and survey of townsites upon the public lands, the division of the same into blocks and lots, the filing of the plats thereof in the General and local land offices, and the disposing of said lots at public and private sale, provides further that "any actual settler upon any one lot. . . . and upon any additional lot in which he may have substantial improvements, shall be entitled to prove up and purchase the same as a preemption, at such minimum, at any time before the day fixed for public sale."

The language of this section, which is a literal transcript of the text of the original act of July 1, 1864 (13 Stat., 343), is somewhat ambiguous and involved, and has heretofore been the subject of different constructions, as it is now in the case under consideration.

It is insisted on the one side that the plain language of the section requires that a party pre-empting two lots must be an "actual settler" upon both, and that therefore the settlement here spoken of was not meant to embrace inhabitancy, or personal residence, inasmuch as it would be impossible for the same person to have a personal residence upon, or inhabit both lots at the same time. But that the act meant settlement, pure and simple, without the requirement of residence or inhabitancy upon either lot. On the other side, it is contended that the intention of Congress was to give to one who settled and actually resided upon one lot, "any additional lot in which he may have substantial improvements."

The former contention is supported by the opinion of Assistant Attorney General Smith, of this Department, in the case of Allman v. Thulon (1 C. L. L., 690) and the latter construction of the act is upheld by your predecessor in Frank's case (2 L. D., 628), and in Elmer v. Bowen (4 L. D., 337). This last case came to this Department on appeal, and the decision below was affirmed by Acting Secretary Muldrow, on January 23, 1886. In the affirmance, the law was not discussed, but it was briefly stated that the rulings of your office, in said case, were in accordance with the law. In the decision thus affirmed it was distinctly held that settlement followed by actual residence, as under the pre emption law, was required as to the first lot; and substantial improvements alone upon the additional lot. And a careful consideration of the whole subject convinces me that the above conclusions are correct. Several witnesses, and the principals on each side, testified at the hearing and though some of the testimony is apparently conflicting on one of the material points involved, I have but little difficulty in arriv

ing at a conclusion. Full compliance with the requirements of the law as to settlement and residence by Mayne upon lot 7 is clearly shown by the evidence; but his right to lot 5, by virtue of either settlement or improvement, is by no means clearly made out. He does not claim that he ever used or occupied said lot, or made any improvements thereon; but bases his whole claim to the same on the ownership of a log cabin, erected thereon by another party, and which Mayne claims is rightfully his property by virtue of a gift; and which he further asserts he was prevented from using by the objections and wrongful occupation of Lovell. But the testimony produced by him fails to show a right to said cabin in those under whom he claims; whilst the testimony presented by contestant establishes the ownership of said cabin and the possessory right to said lot in those under whom Lovell claims, long prior to and at the time of Mayne's filing; its sale about that time to Lovell, and prior to his filing; the erection of valuable improvements. thereon by him; his use and occupation of it continuously and uninterruptedly thereafter up to date of hearing.

On this evidence Mayne's cash entry must be canceled as to lot 5, inasmuch as he never had any substantial improvements upon the same. Inasmuch as Lovell is not seeking to make final proof under his declaratory statement for the two lots embraced therein, the time has not arrived to pass upon his claim to the same; and nothing herein is to be construed as either affirming or denying it; consequently his filing should remain intact upon the record.

The decision of your office is reversed.

PRACTICE-HEARINGS-APPEAL.

MCMAHON . GREY.

If it appear that the evidence submitted is not sufficient to warrant cancellation the government may institute an independent inquiry under Rule 72 if deemed advisable.

An appeal will lie from a decision of the General Land Office holding that the evidence does not justify forfeiture of the entry and ordering a further hearing. Acting Secretary Muldrow to Commissioner Sparks, August 12, 1886.

In the matter of the contest of Edward J. McMahon. James A. Grey, involving the SW. 4 of Sec. 28, T. 144 N., R. 55 W., Fargo, Dakota. I am in receipt of the petition of said McMahon for an order under Rules 83 and 84, directing the certification of the papers in said case, on the ground that his rights are prejudiced by your decision of February 3, 1886, from which you have refused to allow him an appeal.

It appears from the records before me that in September, 1885, McMahon iustituted contest against Gray's timber culture entry, alleging fail