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No. 422.

The execution by a pre-emption claimant, of a deed of trust, for the benefit

of his wife, for more than three hundred and twenty acres, will not remove his disqualification.

DEPARTMENT OF THE INTERIOR,

January 30, 1852. I have examined the question submitted with your letter of the 20th instant, and concur with you in the opinion that the execution of a deed of trust for more than three hundred and twenty acres of land by a person claiming the right of pre-emption under the Act of 4th September, 1841, (No. 48,) for the benefit of his wife, with a clause authorizing the wife to sell the land, does not so divest the claimant of the ownership of the lands therein described as to bring him within the provisions of the said Act of 1841, which expressly excludes from its benefits every person who is the “proprietor of three hundred and twenty acres of land in any State or Territory of the United States,” or who shall quit or abandon his residence on his own land to reside on the public land in the same State or Territory.

Very, &c.,

A. H. H. STUART, Secretary. Commissioner of the General Land Office.

No. 423. Pre-emption cases pending before the Department, involving claims to land

about to be offered at public sale,not considered as included in the proclamation.

GENERAL LAND OFFICE,

October 9, 1855. On the 27th August last, this Office decided adverse to the claim by pre-emption of Edward Murphy to lot 5, and the south half, southwest quarter, section 25, township 29, range 24 west, and in favor of that of Silas Bigelow, contestant, to the south half, southwest quarter of same section, of which decision you were duly notified in letter of same date. On the 19th ult., Mr. Murphy, by his attorney, David Cooper, Esq., took an appeal from the decision of this Office, to the Hon. Secretary of the Interior, and the case is now before him for consideration. As the tract claimed by Mr. Murphy is included in proclamation, No. 545, dated September 22, 1855, and is directed to be offered at public sale, commencing on the 22d of October next, and in view of the fact that Mr. Murphy's claim is yet undecided by the Secretary, you are hereby directed to withhold lot No. 5, or that portion of the claim not included in Mr. Bigelow's entry, from sale, until otherwise ordered by this Office.

Very respectfully, &c.,

Jos. S. WILSON, Acting Commissioner. Register and Receiver at Minneapolis, Min.

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Approved by Secretary McClelland, 10th October, 1855.

No. 424. An assignment of a Pre-emption right will not be recognized by the Depart

ment.

DEPARTMENT OF THE INTERIOR,

November 29, 1855. I herewith return the papers in the conflicting pre-emption claim of Edward Patten and Josial Burwell, for certain land in the Minneapolis District, Minnesota Territory, &c., &c.

It would seem that the appeal from the action in reference to the claim of Patten, proceeds from an attorney of a party claiming an interest in the land, by virtue of an assignment from Patten, and such an assignment is found among the papers. As the law of 1841, (No. 48,) declares all assignments, prior to the issuing of the patent, null and void, said assignment has no status before the Department, and in all such cases, the assignment when received at your office, should be forthwith returned to the party, and not placed in your files, thereby giving color to such a claim.

R. M'CLELLAND, Secretary. Commissioner of the General Land Office.

No. 425. A party who filed a declaration of citizenship before the inception of an adverse right, entitled to pre-emption. Case of Fink v. Harris.

DEPARTMENT OF THE INTERIOR,

August 20, 1857. In regard to the qualification of Fink to acquire a pre-emption right, the certified copy of his declaration of intention to become a citizen of the United States, shows that said declaration was made on the 23d day of April, 1855, which brought him within the provisions of the law, prior to filing his declaratory statement, and prior to the date of any adverse settlement. The entry of Fink will hold the land against the evidence now filed to impeach it, which is not conclusive.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 426. The mother of a pre-emption claimant, not having consummated her citizen

ship before he attained his majority, and he never having been naturalized, his claim rejected.

GENERAL LAND OFFICE,

November 25, 1857. Sir :- I have the honor to present upon appeal, the papers, and report of the Register and Receiver in the case of David T. Jones, applicant, and Daniel L. Williams contestant, for the east half, &c., in the Faribault, Minnesota District.

The testimony shows priority of settlement in Daniel L. Williams, the contestant and appellant, and that he is an illegitimate son of Winfred T.

Williams, a woman of foreign birth, who brought him to the United States while a minor. She declared her intention to become a citizen of the United States on 18th December, 1856. The contestant has never declared his intention to become a citizen, neither has his mother consummated her citizenship. It is contended that Williams being a minor when his mother brought him to the United States, and that she having filed her declaration of intention, these facts confer upon him the right of pre-emption.

This is the point in the case; is Williams, being of foreign birth, of the class contemplated by the Act of 4th September, 1841 ? (No. 48.)

The testimony shows that he is not. I can find no provision in any of the naturalization laws now in force, that would confer on him the right of pre-emption, in virtue of his mother's filing her declaration of intention. I therefore recommend that the decision of the Register and Receiver, adverse to Williams' right be affirmed, and that Jones, the applicant, being the first settler after Williams, be allowed to make proof and payment for the land in dispute, and to enter the same upon taking the affidavit prescribed by law, and in all other respects, showing a full compliance with its provisions and requirements.

With great respect, your obedient servant,

Tros. A. HENDRICKS, Commissioner. Hon. Jacob Thompson, Secretary of the Interior.

No. 427.

Where no doubt could exist as to the tract which a settler intended to claim,

the building of his house a short distance over the line, if afterwards removed on the land, will not be futal to the claim.

DEPARTMENT OF THE INTERIOR,

March 13, 1858. I herewith return the papers pertaining to the conflicting pre-emption claims of George W. Martin, John W. Johnson and Susan Hart, to the southeast quarter section 21, township 18, range 12, from the Omaha, N. T., Land Office, which papers were received with your letter of the 29th of December last.

Said George W. Martin has established 'no right to the land in controversy. The settlement and application of said Johnson were subsequent to the application and intended settlement of Susan Hart. Her declaratory statement is dated the 19th of February, 1857, and her settlement is dated the 13th of the same month. It is true that her first house was not erected on the land,* but so soon as the mistake in location was discovered, the dwelling house was fixed upon the land claimed by her. No doubt can exist as to her intent to make a settlement on the particular quartersection which was described in her declaratory statement. Her subsequent compliance with the law, so far as the circumstances of the case reasonably allowed since her application was first filed, will cure the defect resulting from the mistake in the location of the house. . The decision of the local land office, in favor of Johnson, is hereby reversed, and they will be instructed by you to permit said Susan Hart to complete her entry of the land she claims.

* Extract from the opinion of Attorney-General Butler, dated March 10, 1838, (vol. 3, p. 312.) “The case of the Messrs. Winchell, considered in my opinion of the 10th July last, was one of that description : the parties having personally cultivated public land, and having ploughed, fenced, and planted in corn twelve acres, and erected a house in which they both lived, (one being a single man and boarding with the other,) which house was found, by the survey subsequently made, to be one rod over the line of the quarter-sections cultivated and possessed by them, and on an adjoining section of public land. Its location on that section was evidently occasioned by a mistake as to the line; and no doubt whatever could exist as to the intent of the parties to make a settlement on the particular quarter-sections which they claimed ; and if a settlement on, and occupation of, such public lands was intended to be made by the claimant, and was also actually made by him, so far as the circumstances of his case reasonably required and allowed, then, according to the principles of my former opinions and to my present views, the claim should be allowed, although there was no actual residence on the lands. In other words, in the case just described, I should not consider actual residence or inhabitancy on the lands an essential requisite to the right of pre-emption.”

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 428.

Where neither party has established a valid claim, and one of them failed to file in due time, he may be permitted to make a new claim, if other

wise a qualified pre-emptor. Decision in the case of Jones v. Thompson.

DEPARTMENT OF THE INTERIOR,

June 8, 1858. T

agree with the Register and Receiver, that neither party has established a right of pre-emption to the land in dispute; and with regard to Jones, that the doubt with respect to his age, together with the absence of evidence of a bona fide intention on his part to acquire the land for his own use and benefit, would justify the rejection of his claim. As, however, the land is subject to pre-emption, as said Thompson has in no way forfeited his right to obtain the benefit of the pre-emption law, he may be permitted to date his settlement at any time prior to the inception of any adverse claim to the land, and upon his filing a declaratory statement therefor, within the time specified by law to make proof and payment for the same.

Very respectfully, &c.,

J. THOMPSON, Secretary. Commissioner of the General Land Office.

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No. 429. Of settlers in the " Maison Rouge Grant,claiming the right of Pre-emp

tion under the Act of 1853, no declaratory statement is required.

DEPARTMENT OF THE INTERIOR,

Washington, July 7, 1858. Sir :-Your report of the 25th instant, presented to me on his appealthe case of Francis Layaux—whose pre-emption entry of one hundred and sixty acres of land, lying within what is known as the Maison Rouge grant, was admitted June 12, 1855, by the Register and Receiver at Monroe, Louisiana, under the Act of Congress of 3d March, 1853, (No. 222,) but which has been ordered to be cancelled, for the reason that no declaratory statement was filed by the claimant within three months after the date of the law mentioned.

After consideration, I am of the opinion that individuals, who were residing on said tract of land, at the date of the passage of the Act of 3d March, 1853, may avail themselves of their preference right, to purchase at any time before the lands are offered for public sale; and that of such persons, the law requires no declaratory statement.

The action of the local officers, in admitting the entry, is, therefore, sustained, and is hereby affirmed. The papers in the case are now transmitted to your office. Very respectfully, your obedient servant,

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 430. Under the act extending the pre-emption law to Minnesota, if a division cannot be made, a joint entry may be permitted.

DEPARTMENT OF THE INTERIOR,

January 8, 1858. Having considered the testimony and the facts presented in the case of Laughton v. Cadwell, I am of the opinion, that under the Act of August 4, 1854, (No. 255,) extending the right of pre-emption to unsurveyed lands in Minnesota, which provides, “that if when said lands are surveyed, it is found that two or more persons have settled upon the same quartersection, each shall be permitted to enter his improvements, as near as may be by legal subdivisions;" the said parties, Laughton and Cadwell

, should each be allowed to enter one forty-acre subdivision of the tract in dispute, if such a division thereof can be made, as to give to each his principal improvements; otherwise, unless the parties can agree upon a more satisfactory mode of division, exact justice would seem to require, that they be allowed to enter jointly the whole half-quarter section in dispute; and in addition, each may be allowed to enter the contiguous uncontested tracts claimed by him.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 431.

One party refusing to make a selection or a joint entry, the other may

make choice of the disputed subdivisions.

DEPARTMENT OF THE INTERIOR,

September 8, 1858. The letter of the Register and Receiver at St. Cloud, Minnesota, in relation to the contested pre-emption claims of Cadwell and Laughton, which letters accompanied your communications of the 22d and 23d of July last, are herewith returned.

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