at the date of his original entry did he own any other lands in his own right, so far as appears from the record.

It further appears that in 1895 Julia A. Lowe conveyed to her son, Samuel F. Lowe, one hundred and sixty acres of the two hundred and forty acre tract above mentioned by two deeds of conveyance, in both of which her husband, Samuel Lowe, united, but in one of which the eighty-acre tract owned by the latter was also conveyed.

According to the testimony of Julia A. Lowe and her husband, the latter was never the owner of any part of the two hundred and forty acre tract for which the Indiana lands were traded as aforesaid. Their testimony is to the effect that neither knew until after this contest was brought that the Edwards deed for the two hundred and forty acres of land was made to them both. It does not appear why this was done, and it is very evident that it was not done at the request or instigation of either Mrs. Lowe or her husband. The subsequent dealings with the land, as shown by the record, clearly indicate that no claim was asserted to any part thereof by Samuel Lowe as against the ownership of the whole by his wife. It is shown that the lands were always treated as belonging to Mrs. Lowe in their entirety and all tax assessments were made out in her name.

It is clear from the whole record that said tract of two hundred and forty acres of land was in fact the property of Mrs. Lowe and that her husband was not the owner of any part thereof. It was not subject to his control or disposition, and so far as the legal title rested in him under the deed conveying the same jointly to his wife and himself, he must be considered as holding such title in trust for the benefit of his wife. It can not be considered that he was the owner in fee simple of any part of the two hundred and forty acres of land at the date of the entry in question.

It is contended that the fact of his having signed the deeds conveying one hundred and sixty acres of said two hundred and forty acre tract to Samuel F. Lowe is evidence of ownership therein, but this contention is without merit, for the reason that by one of the deeds the tract owned by himself was conveyed, and for the further reason that it was probably necessary for him to sign the deeds in order to convey a complete and perfect title to the land.

Upon the whole record it must be held that the evidence does not show the entryman to be disqualified as alleged in the affidavit of contest. The contest must therefore be dismissed. The decision appealed from is affirmed.

RAILROAD LANDS-SECTION 4, ACT OF MARCH 3, 1887.

RAY ET AL. v. GROSS.

In determining whether an applicant for patent under section 4, act of March 3, 1887, is a purchaser in good faith, the Department may properly consider certified copies of deeds tendered in evidence, even if said deeds were irregularly placed of record, and hence not conclusive as articles of conveyance.

A remote purchaser in good faith of lands erroneously certified on account of a railroad grant, who buys without any knowledge of defect in the title thereto, is entitled to patent under section 4, act of March 3, 1887, irrespective of any question as to the good faith of the immediate purchaser from the company. Secretary Bliss to the Commissioner of the General Land Office, December (W. V.D.) 22, 1898. (C. J. W.) William H. Gross, claiming to be a purchaser in good faith of certain lands within the limits of the grant of June 3, 1856 (11 Stat., 17), to the State of Alabama, for the benefit of the Mobile and Girard Railroad Company, filed his application for patent for the lands covered by his alleged purchase in the United States land office at Montgomery, and gave notice of his intention to offer proof of his claim under the 4th section of the act of March 3, 1887 (24 Stat., 556).

John H. Ray and nineteen others (some claiming as entrymen and others as settlers on lands embraced in Gross's application for patent) filed protests against the issuance of patent for the tracts claimed by them, respectively, and when Gross offered his proof were represented by counsel and cross-examined his witnesses.

After the proof was all in, on September 15, 1897, the local land officers, successors of those before whom the proof was made, rendered a decision, in which they reached the conclusion that Gross was not a purchaser in good faith within the meaning of the 4th section of said. act of March 3, 1887, from which Gross appealed, and on June 4, 1896, your office reversed the local officers, and several of said settlers have appealed to the Department from your office decision.

It appears that the lands in question, on April 26, and May 31, 1860, were certified to the State of Alabama under the grant referred to, for the benefit of the Mobile and Girard Railroad Company, and, on April 24, 1893, when the rights of said company were adjusted under the forfeiture act of September 29, 1890 (26 Stat., 496), it was found that the lands so certified were in excess of the quantity earned by the company by the construction of its road from Girard to Troy, a distance of eighty four miles, and were excluded from said adjustment and from the recertifications that were made under the forfeiture act.

On July 19, 1893, as reported by your office, after due notice by publication, the lands in question, together with others, were restored to the public domain. The applicant here, claiming to be a purchaser in good faith, relies upon section four of the act of March 3, 1887, afore

said, as the authority upon which he may rightfully obtain patent. Said section is as follows:

That as to all lands, except those mentioned in the foregoing section, which have been so erroneously certified or patented as aforesaid, and which have been sold by the grantee company to citizens of the United States, or to persons who have declared their intention to become such citizens, the person or persons so purchasing in good faith, his heirs or assigns, shall be entitled to the land so purchased, upon making proof of the fact of such purchase at the proper land office, within such time and under such rules as may be prescribed by the Secretary of the Interior, after the grants respectively shall have been adjusted; and patents of the United States shall issue therefor, and shall relate back to the date of the original certification or patenting, and the Secretary of the Interior, on behalf of the United States, shall demand payment from the company which has so disposed of such lands of an amount equal to the government price of similar lands; and in case of neglect or refusal of such company to make payment as hereafter specified, within ninety days after the demand shall have been made, the Attorney-General shall cause suit or suits to be brought against such company for the said amount: Provided, That nothing in this act shall prevent any purchaser of lands erroneously withdrawn, certified, or patented as aforesaid from recovering the purchase money therefor from the grantee company, less the amount paid to the United States by such company as by this act required: And provided, That a mortgage or pledge of said lands by the company shall not be considered as a sale for the purpose of this act, nor shall this act be construed as a declaration of forfeiture of any portion of any land-grant for conditions broken, or as authorizing an entry for the same, or as a waiver of any rights that the United States may have on account of any breach of said conditions.

Gross claims to have been a purchaser in good faith and for a valuable consideration of the lands applied for after they had been certified to the State for the benefit of said company and sold by the company to parties through whom he claims. His proof consists of both oral and documentary evidence. The documentary evidence consists of certified copies of deeds of record in the proper courts of the State where the land lies, which purport to show that Gross is the remote assignee of Abraham Edwards, who was the original purchaser of the lands from the railroad company, on January 21, 1871, and that Edwards sold and conveyed the same to Charles Ewing on February 6, 1871, and that Ewing sold and conveyed to Gross on January 7, 1882. The certified copies of the deeds referred to were objected to by counsel for protestants, upon grounds set forth in the record, both in the local office and before your office, and the objection to the admission of these certified transcripts from the records are still insisted upon in the appeal to the Department, which objection will be hereafter referred to more explicitly. The oral evidence offered by the applicant tends to show the fact of the purchase by him of said lands from Ewing, that they were purchased in good faith, and the consideration paid therefor was ten thousand eight hundred dollars; that no part of the consideration paid by him has been refunded to him or to any one for him.

It further appears that neither Gross nor any one through whom he claims has instituted proceedings against the railroad company for the

recovery of any part of the purchase money, and that there are no persons of the first class, under the 3d section of the act of March 3, 1887, entitled to the right of entry under the pre-emption or homestead laws, claiming any of said lands; and, in connection with this matter, the records of filings and entries at the Montgomery land office were offered in evidence.

The testimony offered by protestants tended to show bad faith on the part of Edwards, the first and original purchaser of the lands from the railroad company, but none was offered tending to impeach the good faith of Gross, who testified that at the time of his purchase he was not acquainted with Edwards and had no knowledge of how he acquired the lands.

Your office did not enter into the consideration of the record with a view to determining whether or not Edwards was a purchaser in good faith, and it is not deemed necessary to do so here, since a finding upon that matter alone would not be conclusive of the case.

Waiving for the present the consideration of the objections to the admission of a part of the proof offered, it may be stated: First. That it is satisfactorily shown that there are no bona fide settlers whose homestead or pre-emption entries have been erroneously canceled on account of a railroad grant or withdrawal in this case. Second. That Gross appears to be a purchaser in good faith of the lands applied for, Third. That none of the protestants show any claim to any of the tracts by settlement or entry prior to the date of the purchase by Gross.

There remain for consideration the exceptions taken to the admission of certified copies of the deeds referred to and the contention that it was incumbent on Gross to show that Edwards, the first purchaser from the company, purchased in good faith.

The objections to the admission of certified copies of the deeds offered by Gross are technical, and do not go to the merits of the case. If it were conceded that they were irregularly admitted to record, and not conclusive as deeds of conveyance, they are nevertheless such evidence of a contract between the parties, in writing, in reference to the land in question, as may be considered in determining whether or not the applicant was a purchaser in good faith of lands sold by the railroad. The objection to the deeds from the railroad company to Edwards, and from Edwards to Ewing, on the ground that they were not recorded within twelve months from date, is without force, as they were recorded before protestants predicated any rights, but they do not claim under these parties, and make no averment that the papers are not genuine. The deed from Ewing and wife to Gross, which was of record in the proper offices, negatives the idea of intention to conceal his claim, and no mere irregularity in the proceedings can defeat his rights as a purchaser in good faith, if he appears from proof satisfactory to the Department to be such purchaser.

The evidence in the case seems to show clearly that the railroad sold the lands in question after they had been erroneously certified to the State for the benefit of said company, and that they were afterwards contracted for and paid for by Gross without any knowledge of a defect in the title. The object and purpose of the applicant in offering in evidence certified copies of certain deeds were evidently not so much to show that he had title, as simply to show that he had acted in good faith in trying to obtain title. See the case of Austin r. Luey et al. (21 L. D., 507.)

The question, then, to be decided is, whether or not Gross is a purchaser from the railroad company in good faith within the meaning of the act of March 3, 1887, he being not the immediate, but the remote, purchaser from said company.

The local officers seem to have been of the opinion that, as matter of fact, Edwards, the first purchaser, had such knowledge of the condition of the affairs of the railroad company at the time of his purchase as to taint it with bad faith, and that as matter of law the good or bad faith of the first purchaser under said act is to be imputed to subsequent purchasers.

Such is not the interpretation placed upon the law by the supreme court. That court, in the case of United States v. Winona, etc., Railroad (165 U. S., 463), interpreting the act of March 3, 1887, held:

Section 4 of the same act, expressly referring to all other lands certified or patented to any railroad company, provides that citizens who had purchased such lands in good faith should be entitled to the lands so purchased and to patents therefor issuing directly from the United States, and that the only remedy of the government should be an action against the railroad company for the government price of similar lands. It will be observed that this protection is not granted to simply bona fide purchasers (using that term in the technical sense), but to those who have one of the elements declared to be essential to a bona fide purchaser, to wit, good faith. It matters not what constructive notice may be chargeable to such a purchaser if, in actual ignorance of any defect in the railroad company's title and in reliance upon the action of the government in the apparent transfer of title by certification or patent, he has made an honest purchase of the lands. The plain intent of this section is to secure him the lands, and to reinforce his defective title by a direct patent from the United States, and to leave to the government a simple claim for money against the railroad company. It will be observed that the technical term "bona fide purchaser" is not found in this section, and while it is provided that a mortgage or pledge shall not be considered a sale so as to entitle the mortgagee or pledgee to the benefit of the act, it does secure to every one who in good faith has made an absolute purchase from a railroad company protection to his title irrespective of any errors or mistakes in the certification or patent.

Under this interpretation of section 4 of said act, and the facts disclosed by the record, Gross is entitled to patent for the land applied for, and your office decision is affirmed.