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As the said claimants have failed to comply with the decision, rendered on the 8th of January last, by making a joint entry of the disputed tract, or by agreeing to a more satisfactory mode of division, and as the proposition made by Mr. Laughton, that each claimant should “enter one hundred and twenty acres, giving Cadwell choice of lots in the disputed portion," appears to be reasonable and just, the Register and Receiver may be instructed to permit the parties to enter the land in accordance therewith. If, however, said Cadwell shall refuse to make choice of lots, then said Laughton may allowed to enter in connection with the eighty-acre tract not in controversy, either of the forty-acre subdivisions in dispute he may designate.

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

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No. 432. Where conflicting settlements in Minnesota were made before survey, one party will not be permitted to deprive the other of a subdivision upon which the former had no improvements.

DEPARTMENT OF THE INTERIOR,

September 8, 1858. The papers received with your letter of the 31st July last, in the contested pre-emption case between E. C. Agnew, J. Lynch, D. Ryan and M. Ryan, from the Minneapolis, Minnesota, Land Office, are herewith returned.

The settlements of Lynch and D. Ryan, were made prior to the survey of the body of lands of which the tract in controversy constitutes a part. The Land Office was not opened until about October, 1854, more than a year after said settlements. Agnew's settlement is claimed and proven to have been made on the 9th December, 1853. The declaratory statements of Agnew, Lynch and Ryan are dated on the same day, to wit, the 20th October, 1854. Lynch however subsequently filed two other statements, but he must be restricted to the tract first declared for. D. Ryan's residence and principal improvements are on the west half of northeast quarter section 30, township 28, range 22, which he is entitled to enter. It does not appear that he had made on the east half of the northwest quarter, any such improvements as would indicate an intention on his part to embrace that subdivision in his claim, prior to the time Agnew became a qualified pre-emptor,* and was residing upon the land. The latter, it is shown, had made valuable improvements thereon, and moreover appears to have settled in good faith. Ryan's filing being of the same date with Agnew's, the latter could not have ascertained from that source, that he was encroaching upon the claim of the former. Although the Act of 1854, (No. 255,) was not in force at the date of said settlement, yet this case may be legally and equitably decided in the spirit thereof, by allowing each claimant to make such an entry as will embrace his principal improvements. Agnew will be permitted to enter the east half, northwest quarter, and Lynch and Ryan as above indicated.

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

* By filing his naturalization papers.

No. 433.

A purchaser of lands in the Maison Rouge Grant," Louisiana, under D. W. Coxe, is entitled, although the purchase-money had not been paid.

DEPARTMENT OF THE INTERIOR,

September 25, 1858. Having considered the evidence, arguments and reports in the case involving the pre-emption claim of the heirs and legal representatives of George W. Copley, deceased, to certain lands situated within the limit of the Maison Rouge grant, subject to sale at Monroe, Louisiana, contested by Dorcas Dinkgrave, I herewith return the papers.

The title of said Copley is derived through several intermediate purchasers from Daniel W. Coxe. Under that title, Copley and his legal representatives have held the land, now claimed by pre-emption, from the year 1844 to the present time; no other person who has been in possession of said land under title derived from Coxe, now asserts any claim thereto. The estate of Copley is liable for the original purchase-money, "if any such liability has accrued,” or if any such debt exists. The heirs and legal representatives of said Copley being in possession of said land, are the only parties who can have any claim thereto under the Act of January 27, 1851 . (No. 184.

The land was first sold as one tract, and notwithstanding the division thereof, before Copley's purchase, he having acquired the title to the whole, the cultivation and improvement of any part thereof, will authorize the entry of the whole tract so purchased. Your decision, approving the action of the Register and Receiver, permitting the entry of said land by the heirs and legal represcntatives of said Copley, is hereby affirmed.

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

No. 434. A Pre-emption Claimant deterred by threats, &c., from prosecuting his improvements, does not lose his right of pre-emption.

DEPARTMENT OF THE INTERIOR,

September 23, 1858. Having considered the case involving the contested pre-emption claim of Mark E. Taylor and Peter Cummings, to certain lands in the Kickapoo District, Kansas Territory, I am of the opinion that said Cummings being deterred by threats and fears of bodily harm, from continuing his settlement and improvement, should not be held responsible for his failure to do so.

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

No. 435. The sale of a claim to a tract of land previously occupied, will disqualify the party from establishing a right of pre-emption.

DEPARTMENT OF THE INTERIOR,

October 27, 1858. The papers received with your letter of the 6th instant, appertaining to the pre-emption contest between Henry Judah, Mary Barker and William McVey, from the Kickapoo, Kansas Territory, Land Office, are herewith returned.

The evidence concerning the sale, by said Judah, to one Hazzard, of his claim to the tract of land, for which said Judah had filed a declaratory statement, before claiming the land now in controversy, shows that the said Judah actually sold his claim thereto, and not merely his improvements on the same. He has thus disqualified himself as a pre-emption claimant, and the filing by him of a second declaration for the tract now claimed, is invalid.

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

No. 436.

Where satisfactory proof of fraud existed, a Pre-emption Claim disallowed.

DEPARTMENT OF THE INTERIOR,

February 10, 1859. Your letter of the 3d of November last, and the papers therewith enclosed, appertaining to the pre-emption contest between Lucius Collar and George Lake, from the Menesha, Wisconsin, Land Office, has been considered.

I concur in your views, as to the invalidity of the pre-emption claim of said Collar, but dissent from your conclusions in favor of the right of said Lake. The land in controversy, as I am advised, was not subject to private entry at the date of Lake's warrant location upon it; and it must be determined whether he has established a valid right of pre-emption thereto. The witness, Calkins, upon whose evidence the pre-emption entry of Lake was allowed, swears that he employed said Lake to pre-empt the land for Darkin. This is corroborated by the facts that said Darkin admits that he furnished the warrant to Lake which was located upon the land, and that said Darkin actually purchased Lake's claim to the land, on the very day upon which Lake's location was admitted. The claim of Lake is therefore regarded as unfounded and fraudulent, and his location must be set aside. The papers are herewith returned.

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

No. 437.

Where a Pre-emption Claimant settled on unoffered lands, but did not

make proof and payment before the land was proclaimed, no relief could be afforded him.

DEPARTMENT OF THE INTERIOR,

Washington, July 5, 1859. Sir:- In the case of Jonathan B. Fisher, appealed by his attorney, G. Bouck, Esq., of Oshkosh, Wisconsin, from your decision of the 28th May last, I cannot do otherwise than affirm the decision.

It appears that Mr. Fisher settled upon unoffered land, but did not come forward and tender his proof and payment before the day on which the land was proclaimed for sale; and that the tract on which he had settled was sold at public sale on the 3d of May, 1859, pursuant to the President's proclamation, No. 628, of December 24, 1858.

Under these circumstances, this Department has no power to afford relief to Mr. Fisher. The certificate of filing, which was issued to him by the local officers, in which, as it is alleged, it was indicated that Mr. Fisher would be entitled to one year from the date of the legal confirmation of his settlement, is not an official paper which the law recognizes, -and parties who rely on the contents of such a paper, do so at their peril.

It is proper to remark, that in the present case, there is no evidence, or indication of any collusion between the party who has purchased at public sale, and the local officers, for the purpose of defeating Fisher's pre-emption. It was, however, an act of culpable carelessness, if they informed Mr. Fisher that he had settled on land which had been offered at public sale, when the fact was otherwise.

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

No. 438.

A Pre-emption Claimant, who first claimed less than one hundred and sixty

acres, believing that there was no vacant land adjoining, may be permitted to file for such, and embrace the additional quantity in his claim.

DEPARTMENT OF THE INTERIOR,

August 17, 1859. Sir :—The papers in the case of Bryan v. Whittles, from the Nebraska City Land Office, and which were received with your letter of the 12th May last, are now returned.

Å former contest between these parties, for the right of pre-emption to eighty acres of the land now in dispute, was decided by this Department adversely to the said Bryan, for the reason that he was " not the head of a family, within the meaning of the law.” The opinion that this assumed character was a mere pretence, by which to evade the law, is fortified by facts which have been since disclosed. This boy's father, who resides ou an adjoining tract, is the head of the family to which he belongs. It appears,

that after the decision of the Department before mentioned, by which it was held that said Whittles should be permitted to enter the land he claimed, “ upon his establishing his rights thereto, as a qualified and bona fide pre-emptor," he included in his declaratory statement the other eighty, which had been embraced in Bryan's claim. That eighty was vacant public land, and as the claimant, Whittles, had failed to file for more than a half quarter-section, no objection is perceived to allowing him to add thereto a sufficient quantity to make one hundred and sixty acres, the quantity which the law allows a pre-emptor to acquire, if no adverse rights had attached to the additional tract claimed. His right would begin from the date of such notice. This principle has been recognized and

adopted by several decisions of the Department. But in this case, certain statements have been made, which, if substantiated by proof, would indicate an abandonment by Whittles, of his house upon the land, and that he has made his home elsewhere. He should be required to produce proof of his compliance with the law, particularly as to inhabitancy and improvement, from the date of his first occupancy of the land, until he offers to enter. Otherwise, his claim should be rejected. Very respectfully, your obedient servant,

MOSES KELLY, Acting Secretary. Acting Commissioner of the General Land Office.

No. 439. Any transfer of the right of Pre-emption will be treated as absolutely void.

The action of the Register and Receiver, in admitting an entry, is not final in this class of cases.

DEPARTMENT OF THE INTERIOR,

September 22, 1859. Sir :-Upon a revision of the case of Alexander S. Johnson and John Denny, conflicting pre-emption claimants of a tract of land in the Lecompton District, Kansas Territory, I am satisfied that said Denny has failed to show a valid right to the land, and that his entry should have been cancelled.

The irregularity in the proceedings of the local officers, which consisted in granting a re-hearing of the case without instructions, was rendered immaterial by the appeal, and your subsequent action in the case.

Two points, raised by the counsel of Denny, will be briefly considered. The first is, that a bona fide purchaser for a valuable consideration, of the interest of said Denny, is protected by the pre-emption law. A sufficient reply to this is, that the law provides that all assignments and transfers of the right of pre-emption, " prior to the issuing of the patent, shall be null and void.” This Department will not, therefore, recognize or protect the claim of an assignee of a pre-emption right. That right is not regarded by the law as complete until the patent issues, and it can only be consummated so far as our action extends in the name and for the benefit of the preemptor. Any transfer thereof will be treated as a nullity, and as absolutely void.

The other ground of exception is, “That the Government of the United States has received the compensation demanded of Denny for the land, and unless some fraud be charged on Denny, and evidence to sustain that fraud be adduced, the government has no right to cancel the contract,” &c. The answer to this point is, that as questions arising between different settlers are appealable, the action of the Register and Receiver is not final, and the Government is not bound thereby in cases of appeal.

Very respectfully,

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

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