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sions of the Act of 1841, so far as to remove from claims under it the fatal objection of being founded on a settlement made before the survey, provided such settlement was made prior to the 4th September, 1841.
The concluding paragraph of the ninth section renders inoperative the construction placed by this Office upon the latter part of the fifteenth section of the Act of 4th September, 1841. That portion, therefore, of the last paragraph on the first page of Circular of 28th September, 1842, which relates to this subject, is annulled; and you are instructed to permit a person who has filed, or shall hereafter file, according to law, a declaratory statement for a tract of land subject to private entry, to enter the same after the twelve months, from the time of his settlement shall have expired, without filing any proof of his right as a pre-emptor, provided he is the first applicant, after that time, for the entry of the same at private sale. [See Note V., post.]
I am, very respectfully,
Tho. H. BLAKE, Commissioner.
[The pages herein referred to will be found in Part I.,“ Laws, Instructions and Opinions."]
Claims under this third section may arise under the act of 5th February, 1813, (page 225,) and the fifth section of the act of 12th April, 1814, (page 241, inasmuch as those laws are yet operative on land (to which the Indian title was extinguished at their respective dates,) situated in a township not yet offered for sale, and which land is within the bounds of the then Territories of Illinois and Missouri and that part of the State of Louisiana which composed the theretofore Territory of Orleans. The proof and payment, under these acts, were not required to be made until two weeks prior to the commencement of the public sale.
Claims may also arise under Act of 29th May, 1830, (No. 22,) the proviso to the Act of 5th April, 1832, (No. 24,) the Act of 19th June, 1834, (No. 28,) the Act of 22d June, 1838, (No. 38,) and Act of 1st June, 1840, (No. 40,) entitled “An act supplemental to the act entitled "An act to grant pre-emption rights to settlers on the public lands,' approved June 22, 1838,” inasmuch as the five last mentioned acts--the first, third, fourth and fifth, by virtue of the Act of 14th July, 1832, No. 25,) and the second by virtue of the Act of 2d March, 1833, (No. 27,)—are operative on land subject to pre-emption at their respective dates, where the plats have not yet been returned to your office, or, being so returned, the year subsequent thereto shall not have expired when the claim is preferred.
The third section of the Act of 27th February, 1815, (page 257,) the third section of the Act of 3d March, 1819, (page 312,) and the third section of the Act of 1st June, 1840, (as explained in the body of this circular,) all provided for settlements on school lands made by claimants at the periods required by Acts of 1813, 1814, 1838, and 1810, before referred to; but these provisions are now all merged in this third section of the Act of 3d March last, and all future locations are to be made in accordance with its provisions.
The fifteenth section of the Act of 4th September, 1841, requires that the declarations therein referred to shall be filed within thirty days after the settlement, and the proof and payment made within twelve months after such settlement.
The fifth section of the Act of 3d March last, requires the declarations, in cases to which it has reference, to be filed within three months after the date of the act where settlement was made prior to the 3d March last, or three months after the settlement where it shall be made subsequent to said 3d March, and the proof and payment may be made at any time before the commencement of the public sale which shall embrace the land claimed.
The first section of the Act of 1st June, 1840, gave to a settler under Act of 22d June, 1838, residing on one "quarter-section" and cultivating land
“ another and different quarter-section,” the right of entering either of said quarter-sections, or legal subdivisions of each, not to exceed one hundred and sixty acres. This privilege embraced only single settlers on such tracts—namely, where but one settler was residing on one and cultivating the other of such tracts; because only in such cases could the choice given be exercised. This section extends a similar privilege to such single settlers, under Act of 1838, on other tracts than a “quarter-section," but has omitted to provide for like cases under Act of 1st June, 1840.
NOTE IV. .
The first proviso of the Act of 22d June, 1838, declares that " where more than one person may have settled upon and cultivated any one quarter-section of land, each one of them shall have an equal share or interest in the said quarter-section, but shall have no claim, by virtue of this [said] act, to any other land.” This proviso was not affected by the first section of the Act of 1st June, 1840—that referring only to single settlers on a quarter-section. [Sce Note III.] It is now entirely superseded, in regard to future cases under Acts of 1838, and 1840, where there are two or more settlers on the same quarter-section, by the eighth section of the Act of 3d March last, which not only gives extended privileges to such settlers under either of said acts on a quarter-section, but makes provision for like settlers on other tracts than a quarter-section.
The Act of 4th September, 1841, conferred no right where the settlement was made on land to which the Indian title had not been extinguished, and which was not also surveyed at the time of such settle
The latter part of the fifteenth section of the Act of 4th September, 1841, provided that a failure on the part of a claimant under that section to do any of the acts required thereby, should render the land subject to the entry "of any other purchaser." The Circular of 28th September, 1842, (No. 410,) directed such a construction of this latter clause to be observed by the land officers as would prevent such a claimant from coming forward to enter, at private sale, land previously claimed by him as pre-emptor, after keeping it for twelve months from being purchased by any one else. He had elected to take it as a pre-emptor, and, as such, was bound under that law to prove his right; and it was believed that Congress, in declaring the land subject to the entry of “any other purchaser,” should he fail to make good his right of pre-emption, expressly designed to exclude him in consequence of his neglect or inability to show the truth of his declaratory statement by which the land was for twelve months withheld from being sold
to any other
Affidavit to be filed in cases (under Act of 22d June, 1838, or 1st June, 1840,) where the
settler shall have died before proving up and entering his claim.
I, A. B., [executor of the estate of C. D., or administrator of the estate of C. D., or one of the heirs of C. D., aged years, as the case may be,] do solemnly swear (or affirm, as the case may be,] that said C. D., to the best of my knowledge and belief, entered upon the section number , of township number
of range number subject to sale at in his own right, and exclusively for his own use and benefit; and that he has not, directly or indirectly, made any contract or agreement, in any way or manner, with any person or persons whatever, by which the title to the land which he might have acquired from the government of the United States, by virtue of said settlement, under the law of 22d June, 1838, [or 1st June, 1840, as the case may be,] should enure to the use or benefit of any one except himself, or to convey or transfer the said land, or the title which he might have acquired to the same, to any other person or persons whatever at any subsequent time.
A. B., Executor of the estate of C. D. [or administrator of the estate of C. D., or one
of the heirs of C. D., as the case may be.]
Affidavit to be filed in cases (under Act of 4th September, 1841,) where the settler shall
have died before proving up and entering his claim.
I, A. B., [executor of the estate of C. D., or administrator of the estate of C. D., or one of the heirs of C. D., aged years, as the case may be,] do solemnly swear (or affirm, as the case may be,] that to the best of my knowledge and belief, the said C. D., who was a settler on the quarter of section number -, of township number of range nunber subject to sale at has never had the benefit of any right of pre-emption under the act entitled “An act to appropriate the proceeds of the sales of the public lands and to grant pre-emption rights,” approved September 4, 1841; that he was not, at the time of his death, the owner of three hundred and twenty acres of land in any State or Territory of the United States; that he did not settle upon and improve the above tract of land on speculation, but in good faith to appropriate it to his own exclusive use and benefit; and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he might have acquired from the government of the United States should enure, in whole or in part, to the benefit of any person except himself.
(Signed) A. B., Executor. [or administrator, or one of the heirs
of C. D., as the case may be.]
I, E. F., Register Cor G. H., Receiver) of the Land Office at
hereby certify that the above affidavit was taken and subscribed before me, this
A. D. 185-
G. H., Receiver.
Declaratory statement for cases where the land is not subject to private entry.
I, A. B., of —, being [the head of a family, or widow, or single man over the age of twenty-one years, as the case may be, a citizen of the United States, or having filed my declaration to become a citizen as required by the naturalization laws, as the case may be], did, on the day of — A. D., 185–, settle and improve the quarter of section number in township number
of range number
in the district of lands subject to sale at the land office at -, and containing
acres, which land has not yet been offered at public sale, and thus rendered subject to private entry; and I do hereby declare my intention to claim the said tract of land as a pre-emption right, under the provisions of said Act of 4th September, 1841. Given under my hand, this
-, A. D. 185(Signed)
A. B. In presence of C. D.
GENERAL LAND OFFICE,
May 14, 1846. Gentlemen :-Enclosed I send you a copy of an act entitled “An act to repeal a part of the act entitled 'An act supplementary to the several laws for the sale of the public lands,' approved April fifth, one thousand eight hundred and thirty-two," and for other purposes, approved May 8th, 1846, (No. 104.)
Under the provisions of this act, forty-acre tracts or quarter quarter-sections, are subject to entry, selection, or location, precisely in the same manner that eighty-acre tracts, or half quarter-sections, have heretofore been; consequently the affidavits for the entry of quarter-sections, heretofore required, will now be dispensed with; and it will no longer be necessary to note these entries on the returns, as being under the Act of 5th April, 1832. All lands, however, will be offered at public sale, in half quarter-sections, or eighty-acre tracts, as heretofore.
Very respectfully, your ob't servant,
JAMES SHIELDS, Commissioner. Register of the Land Office, and Receiver of Public Moneys at —
GENERAL LAND OFFICE,
April 5, 1854. Whereas, by an act of Congress approved March 27, 1854, (No. 234,) entitled “ An act for the relief of settlers on lands reserved for railroad purposes,” every settler on public lands "which have been or may be withdrawn
from market in consequence of proposed railroads, and who had settled thereon prior to such withdrawal, shall be entitled to pre-emption, at the ordinary minimum, to the lands settled on and cultivated by them : Provided, they shall prove up their rights according to such rules and regulations as may be prescribed by the Secretary of the Interior, and pay for the same before the day that may be fixed by the President's proclamation for the restoration of said lands to market ;" public notice is hereby given, by direction of the Secretary of the Interior, that all such settlers will be entitled to the right of pre-emption given by the said act, upon furnishing proof (satisfactory to the district office that the settlement on which the claim is predicated is of a character to entitle the settler to a right of pre-emption under the provisions of the Act of 4th September, 1841, and was made by such settler prior to the “withdrawal" of the land for the purpose stated,
“declaration” of course, being necessary under the circumstances : provided payment be made for the same “ before the day that may be fixed by the President's proclamation for the restoration of said lands to market.”
JOHN WILSON, Commissioner.
GENERAL LAND OFFICE,
October 24, 1856. Gentlemen :-By reference to the enclosed copy of circulars, (No. 408,) you will perceive that in each case of pre-cmption "the original proof, affidavit, and receipt must be filed with the certificate of purchase, each paper being appropriately endorsed, and transmitted to this Office with your monthly abstracts,' &c.
Where the claim is located by warrant, the proof, &c., must be filed with it.
Also, where it is only in part located and the residue paid for in cash.
In the latter class of cases, where the excess extends to, and is in satisfaction of a legal subdivision, it will be necessary to issue a certificate of purchase for such subdivision; in which cases the proof should accompany the cash entry—on which entry or certificate must be endorsed the fact that the residue of the claim has been located with warrant; giving the number, act under which issued, &c., and on the certificate of location make a reference to the cash entry.
Likewise, in your military abstracts, note opposite to each case of preemption, the law under which preferred; and where the claim is located in part only with warrant and the residue paid for, and a certificate of purchase issued, give the number of the cash entry.
A strict compliance with this requirement, and all others in the enclosed circulars, will be insisted upon.
Otherwise, confusion and unnecessary labor and delay must inevitably follow.
Respectfully, your obedient servant,
Thos. A. HENDRICKS, Commissioner. Register and Receiver at