surveyor, or from any other information in possession of the local office." The second section of the Act, March 22, 1852, "to make land warrants assignable, and for other purposes," authorizes the Registers and Receivers of the land offices, thereafter to "charge and receive" a certain " compensation or percentage" * * * * "for their services in locating military bounty land warrants, issued since the 11th day of February, 1847." The sixth section of the Act of 3d March, 1855, "in addition to certain Acts granting bounty land" for military services, also, authorized certain charges on the location of warrants issued under that Act. The proviso in the Act of September 28, 1850, herein before recited, has been modified by these subsequent enactments; and locations cannot be made "free of expense," but are subject to specific charges, to be paid by the locator. The Act of 22d March, 1852, which extended the bounty granted by the Act of 1850, to certain cases, in its fourth section provides, that all the benefits of the last mentioned Act shall be extended to those cases; and the fourth section of the Act of 3d March, 1855, authorizes the location of the certificates or warrants issued pursuant to that Act, according to existing laws regulating the location of bounty land warrants. The rights of the warrantees and assignees of bounty land certificates, issued under the Acts of 1850, 1852, and 1855, appear to be on an equality, therefore, so far as relates to the duties to be performed by executive officers in the location of warrants. The Commissioner of the General Land Office will therefore receive military bounty land warrants issued since the 11th February, 1847, whenever presented at his office by the owner, with the request accompanying them, that they be located in a specified land district; and when the Commissioner is satisfied that proper steps have been taken by the applicant to place the amount of money legally chargeable on effecting the location of the warrant or warrants in the hands of the district officers, he will forward the warrants to the Register and Receiver of the proper district, to be by them located, pursuant to the proviso of the last section of the Act of September 28, 1850. And as it is manifest that this proviso can only be carried out in harmonious conjunction with other enactments, regulating the disposal of the public lands, and the assignment and location. of bounty land certificates, the warrants presented at your office can have only such opportunities of location at the district office, after the arrival of the money and warrants there, as the owner could have if personally present and offering said warrants and money on the day that they both first reach the local office in business hours. The Act of 28th September, 1850, contemplates that the particular tracts to be located in this manner, shall be selected or designated by the local officers of any particular district, from the vacant public lands in such district, liable to be located by the specific warrants sent them from your office; and when locations are made by district officers in cases of this kind, they will certify in connection with their usual certificate in each case, that the location has been made “upon good farming land, so far as the same can be ascertained from the maps, plats, and field notes of the surveyor, or from any other information in the possession of the (land) local office. Whenever, therefore, military land warrants are presented to your office for location, you will " cause them to be located" in accordance with the views above expressed. Commissioner of the General Land Office. J. THOMPSON, Secretary. No. 632. Pre-emptors may use more than one Land Warrant in locating their claims. DEPARTMENT OF THE INTERIOR, Sir:-I concur in the opinion expressed in your letter of the 12th inst., that no legal impediment exists to permitting pre-emptors to use more than one bounty land warrant in locating their claims. The suggestion that the regulations for the guidance of Registers and Receivers be so changed as to conform to this view of the law, is therefore approved. Very respectfully, your obedient servant, J. THOMPSON, Secretary. Commissioner of the General Land Office. No. 633. The Commissioner of the General Land Office is not required to examine and approve assignments of Land Warrants, but may, at his discretion, do so. DEPARTMENT OF THE INTerior, Sir:-I have considered your report of the 3d instant, in the matter of the appeal asked by John Y. Bryant, Esq., from your refusal to endorse your recognition of the assignment of an unlocated military bounty land warrant, No. 50326, for one hundred and sixty acres, (Act 1855,) issued to William Hector. You are not required by law to examine assignments of warrants before the warrants are returned located, and if, in your discretion, you see fit to do so, I shall not interfere to control your discretion, or to review your action. Commissioner of the General Land Office. J. THOMPSON, Secretary. On the same subject. DEPARTMENT OF THE INTERIOR, Sir:-Your letter of the 22d July last, addressed to the President, and requesting, for reasons stated, that your authority to assign certain duplicate bounty land warrants, issued in the names of other persons, shall be recognized by the General Land Office, has been referred to this Department. I have to inform you, in reply, that warrants were made assignable by the fourth section of the Act of Congress of March 3, 1855, which provides that certificates or warrants may be assigned, transferred, and located by the warrantees, their assigns, or their heirs-at-law. We should be pleased to do any thing in our power to relieve you from the loss and embarrassment incident to the peculiar facts of your case, but there is no law which authorizes us to recognize assignments of warrants, which have been or may be executed by persons other than those named in the act of Congress just quoted. Should we assume to endorse, on the duplicate warrants in your hands, a recognition of your authority to assign them, our act would be supererogatory and void, and fail to afford you the relief which you seek. J. THOMPSON, Secretary. Henry Bainbridge, 323 Greenwich street, New York City. No. 634. The Act of 22d March, 1852, making Land Warrants assignable, does not apply to locations which have been made under the Pre-emption law. DEPARTMENT OF THE INTErior, March 25, 1859. Your report and accompanying papers, touching the proposition of Cyrus Woodman, to surrender a certain patent issued in the name of Daniel T. Bunker, embracing certain lands in the Mineral Point, Wisconsin, District, to which said Bunker had established a pre-emption right, and upon which bounty land warrant, No. 14844, (Act of 1850,) was located, and which was assigned by Bunker to Woodman, upon the duplicate certificate of location, and the application of said Woodman that a new patent issue to him, have been considered. The fact, that at the date of such assignment, warrant locations on land claimed by pre-emption, were regarded and recognized by the General Land Office as assignable, would seem equitably to entitle the applicant to relief, but in view of the interpretation which has been placed upon the Act of 22d March, 1852, (No. 190,) "making land warrants assignable," such relief cannot be afforded in the manner proposed. By the Act of 1841, all assignments and transfers of the right thereby secured, are declared null and void. This prohibition is plain and positive, and there can be no doubt that it was intended absolutely to prevent and disallow all assignments of pre-emption rights. The construction which has been given to the Act of 22d March, 1852, by this Department, and which is now held to be the true one, is, that Congress did not thereby intend to repeal by implication, any of the provisions of the pre-emption laws, and that the same, leaves the right of preemption "subject to all the restrictions of the law upon which it is based." If this construction be the true one, and I am clearly of the opinion that it is, there is no authority vested in this Department to issue a patent to the assignee of a pre-emption right, nor can a patent which has been properly issued in accordance with law, be legally cancelled. Equity cannot be invoked to render lawful that which the law expressly forbids. The patent to Bunker has been issued in conformity with the established ruling of this Department, and it is not perceived how the same can be properly and consistently cancelled, and another issued, which, according to the accepted construction of the law, is not contemplated or warranted by it. Whether the assignee, Woodman, can obtain relief in a court of equity, is a question for the courts to determine. J. THOMPSON, Secretary. Commissioner of the General Land Office. No. 635. Lands which were settled upon could not be located with Warrants under the Act of 1855, without the consent of the settler. The invalidation of the location confers no right upon the settler, however, but the land must be publicly offered for sale. DEPARTMENT OF THE INTERIOR, April 8, 1859. I return herewith the papers submitted with your report of the 5th instant, in the case of Osborn and Schenck, reported from the office at Batesville, Arkansas. It is clear that the location of the warrant by Schenck was invalid, Osborn being at the time a resident on the land. Pending the location, Osborn applied to enter the land as a settler, but it is not shown that he attempted, or claimed to bring himself within the pre-emption laws. That application was properly refused under the cir cumstances, by the local officers, and unless some valid preference right can be shown, on the part of Osborn, I agree with your suggestion that the land in such cases, if you find it proper, or necessary for fair competition among buyers, should be formally restored to market by thirty days' notice. J. THOMPSON, Secretary. Commissioner of the General Land Office. No. 636. Where a Land Warrant was erroneously issued for one hundred and twenty acres, and the claimant was only entitled to eighty acres, the Warrant may be located by an assignee who is a purchaser for consideration, and without notice, for its full quantity of one hundred and twenty acres. The issuing of duplicate Warrants is unauthorized by law.* DEPARTMENT OF THE INTERIOR, Sir:-A duplicate warrant for one hundred and twenty acres of bounty land having been issued by mistake from your office, on the 3d of December, 1855, in the name of William Rowland, private in Capt. Byrnes' company of Tennessee militia, when the evidence plainly shows that he claimed and was entitled to but eighty acres, the question has been brought before me to decide whether it ought to be patented by the General Land Office for the full number of acres guaranteed upon its face, or whether it should be cancelled, and a certificate for the proper amount issued in its stead. Warrants having been made assignable by Act of Congress, this one was duly sold by Rowland to one Benjamin F. Felt, on the 3d of June, 1856; and it is claimed in his behalf, that, being a purchaser without notice that this official certificate of the Government was in any respect defective, he is entitled to a patent for the amount of one hundred and twenty acres. I have examined into the matter with care, and find my conclusions favorable to the claim of the assignee, Felt. It is evident that the error of issuing the warrant for one hundred and twenty acres was an act beyond the control, and without the knowledge or participation of Felt. He was not bound even to inquire whether Rowland was or was not legally entitled to a larger or smaller number of acres. That he found it upon the market, issued under due form of law, and properly assignable by Act of Congress, was all he had to look to. When he became its legal owner, the Government was his debtor for what it carried upon its face, and when located, he was entitled to a patent for it. In these views, I think I am fully sustained by the able opinion of Mr. Attorney-General Cushing, of March 15, 1856, which deals with this question in pointed language. The opinion of Mr. Attorney-General Wirt, of October 10, 1825, which was cited as maintaining a contrary view, was intended to apply to a different class of cases, and was announced at a period long prior to the time when warrants for bounty land were made assignable by law. Under this conviction, I feel bound to decide that the Commissioner of the General Land Office cannot withhold from Felt his patent for one hundred and twenty acres of land, * See Nos. 621, 622. according to the terms of the location made by him. The case might be different if the warrant was still in the hands of Rowland, the original grantee, or the assignment was a forgery. In connection with this claim, my attention has been drawn to the custom prevailing in the Pension Office of granting duplicate warrants. This system was first sanctioned by my predecessor in office, the Hon. Thomas Ewing, and went into operation under his decision in the case of William S. Morgan, father and heir-at-law of Michael H. Morgan, of date February 5, 1850, at a time when land warrants were not assignable by law. But when considered in its present bearing upon the fact that the duplicate is assignable just as the original is, and is equally negotiable, it must prove to be productive of incurable evils to the Government. Though intended for the accommodation of those who have had the misfortune to lose their warrants, it has unquestionably been used by dishonest persons as a means of procuring a larger amount than they were entitled to, while the negotiable quality of the certificate has enabled them to impose upon innocent purchasers. It is, in addition to this, wholly without the warrant of law, and an exercise of authority which I am unwilling should continue longer. I know of but one instance in which I should consider it proper to grant a new warrant, and that is, where the original is returned to the Pension Office mutilated or defaced. In that case, after cancellation, and every precaution taken against the possibility of its being again used without detection, I think you would be authorized to issue another original warrant, conforming in date, amount and every other particular, with the one returned, noting thereon that this is given in lieu of one cancelled. J. THOMPSON, Secretary. George C. Whiting, Esq., Commissioner of Pensions. No. 637. Where both the original Warrant and the duplicate are located, both must be satisfied except in cases of forgery. Department oF THE INTERIOR, Sir:-In the case of Military Bounty Land Warrant, No. 17947, for one hundred and sixty acres, Act of September, 1850, the original of which was issued in 1852, and located in 1854, (February,) in the name of W. J. Barney, as assignee; and a duplicate of which was issued in August, 1854, and located soon after by W. H. H. Bailey, as assignee, after mature deliberation, I have reached the conclusion, that both locators will be entitled to patents for the lands located, on satisfying you by affidavit or credible testimony that they were innocent purchasers, for valuable consideration, without notice of any fraud, in making or procuring the assignment of said warrant and duplicate. If, however, the assignment of either warrant, has been forged, no right passes thereby, and the location of the warrant is void. Commissioner of the General land Office. J. THOMPSON, Secretary. |