right of the original purchaser has not been assigned or in any way transferred, and where six months from the time of entry has not elapsed, the party making the entry (or legal representatives, not being assignees or transferees) must file an affidavit, showing the nature and particular cause of the error, that every reasonable and proper precaution had been used to avoid the error, and that the land erroneously entered had not been transferred or otherwise encumbered, accompanied by the best corroborative testimony that can be procured, for you will observe, by this Act, that the oath of the party interested is not, of itself, sufficient. This evidence, with your opinions as to the existence of the mistake and the credibility of each person, will be forwarded for the decision of this Office. 3. The Act of 1825, provides for cases in which the sale of the land is invalid, in consequence of the want of title thereto in the United States, from any cause whatsoever. Under this Act it has been decided, that if only part of the tract purchased is covered by the interfering claim, it is optional with the purchaser to relinquish the whole tract, or only the particular part interfered with. You will observe, that, under this Act, the money is to be refunded by the Secretary of the Treasury, and not by the Receiver of public moneys. All applications to obtain the benefits of this Act must be supported by your joint certificate, or that of the Surveyor-General, stating the nature of the particular interfering claim, or other circumstance rendering the sale invalid, and be accompanied by the patent, if any has been issued for the invalid sale, with a relinquishment of title, in the following form: "Whereas the Act of Congress, passed on the 12th day of January, 1825, entitled 'An act authorizing repayment for land erroneously sold by the United States,' provides, that whenever the sale of a tract of land by the United States is void for want of title thereto in the United States, or from any other cause whatsoever, the money paid on the same shall be refunded by the Secretary of the Treasury. And whereas [a part, or the whole, as the case may be,] of the within described section of land, , or, as the case is [included in the survey of the private claim of may be.] Now know ye, that for and in consideration of the sum of -, to me in hand paid, by the Secretary of the Treasury, I, the within named hereby assign, transfer, relinquish, and surrender to the United States, all my right, title, interest, and claim of, in, and to, the land described in the within patent. Given under my hand and seal this day of, 183-. Signed, sealed, and delivered, in presence of 4. By the Act of 24th May, 1828, the provisions of the Act of 1819, are so extended as to embrace patented cases. The application for relief, in these cases, will have to be reported in the manner required in those not patented under the Act of 1819, and be accompanied by a certificate that the patent is surrendered to you. If the correction of the entry is authorized, you will, before the money is refunded, or the change of entry notedon your books, require the party to execute, upon the patent, a relinquishment in the following form: "Know all men by these presents, that, in pursuance of the provisions of the Act of Congress, approved on the 24th day of May, 1828, entitled 'An act supplementary to an act entitled an act providing for the correction of errors in making entries of lands at the land offices, passed March third, eighteen hundred and nineteen,' and in order that a patent may be granted to me for the of section in township ———, of in lieu of the tract herein mentioned, I hereby surrender and relinquish unto the United States of America all my right, title, and range interest of, in, and to, this patent, and to the land therein described. In testimony whereof, I have hereunto signed my name, and affixed my seal, this day of 183-. Signed, sealed, and delivered, in presence of At the foot of the above relinquishment, you will give a certificate, stating the precise cause of the error. In all cases where patents have been issued, you will require a certificate from the county clerk, or other officer having charge of the books in which any conveyance, &c., of the land is required to be recorded to give it validity, stating that the records of such office do not exhibit any conveyance, or other incumbrance, of the land in question. The deed of relinquishment must be executed before two or more witnesses, and be acknowledged before a justice of the peace, with the clerk's certificate of magistracy annexed. Whenever the change of entry is ordered, the certificate of purchase will be cancelled, and retained in this Office. The Receiver will take a receipt from the purchaser for the purchase money of the tract erroneously entered, as if the same was refunded, which receipt will be a voucher to the Receiver's credit, to be introduced into the proper monthly and quarterly accounts in the following manner, viz: "By this amount refunded to General Land Office, dated the No. quarter of section No. agreeably to instructions from the being the purchase-money of the in township No. of range acres, erroneously entered by him, and again charged to me, in the purchase of the in township No. of range No. quarter of section No. The Receiver's receipt for the purchase money of the corrected entry is, as well as the Register's certificate of purchase, to bear a new number. By this proceeding the corrected entry becomes an original transaction, and will appear as such in all your accounts. I am, very respectfully, The Register and Receiver of the Land Office at Commissioner. No. 666. Circular to Registers and Receivers of United States Land Offices. GENERAL LAND OFFICE, Gentlemen :-In conformity with instructions from the Secretary of the Treasury, that this Office will hereafter report for his directions "in the manner prescribed by the Act of January 12, 1825, all cases of claims for repayment of money where a sale of public land has been erroneously made," you are hereby instructed, that where a private entry shall hereafter be annulled by the subsequent establishment of a pre-emption claim to the same land, you are to report to this Office such erroneous sale, (in the manner prescribed by the Circular of August 31, 1830,) and accompany such report with the written application of the party for a return of the purchase-money, which, instead of being repaid as heretofore by an order from this Office, will be repaid by what is termed a Treasury refunding warrant, under the provisions of the aforesaid Act of 12th January, 1825, entitled "An act authorizing repayment for land erroneously sold by the United States." Should there remain at your office any case of the character referred to, where repayment heretofore ordered by this Office has not been made, the Receiver is now instructed to withhold payment and to report the case for repayment in like manner as above mentioned. Application in like manner is to be made for repayment of an excess of purchase-money, where a tract of land has been, or shall be erroneously sold for a quantity greater than that indicated by the township plat. Should there exist at the Receiver's office any unpaid order of this Office, for the return of purchase-money in any case of error of a character other than that of the classes above mentioned, (viz: error in calculating the purchase-money of the acres correctly indicated in the receipt and certificate of purchase; or in permitting the entry of a pre-emption claim which has been afterwards declared to be void; or in permitting the entry at private sale of a tract of land which had not been previously offered at public sale;) the Receiver in any such instance is hereby instructed to withhold payment, and immediately to report the case to this Office. Very respectfully, Your obedient servant, No. 667. Commissioner. Circular in relation to cases of repayment of Purchase-money and changes of entry. GENERAL LAND OFFICE, January 19, 1854. Gentlemen:-The Circulars of the 31st August, 1830, 23d July, 1849, and 20th April, 1853, not embodying all that is now required of applicants to have the purchase-money paid on illegal sales refunded, or to effect changes of entry, it is deemed advisable to issue these instructions in circular form. 1st. The duplicate receipt must be surrendered, and accompany accompany the papers in all cases of application for refunding money submitted by you for the action of this Office. Where it has been lost or destroyed, the party applying must advertise it, and give notice of his intention to apply to have refunded the purchase-money, which must be inserted weekly for six weeks in some paper of extensive circulation in the vicinage of the land. A copy of this must be filed with you, having attached the affidavit of the publisher that it was inserted the requisite number of times. 2d. The applicant must make affidavit that he has not transferred or otherwise encumbered the title to the land. This affidavit may be taken before either of you officially, before a notary public using a seal, or a justice of the peace in the last case, a certificate of magistracy must accompany it. 3d. Where a patent has been issued, and delivered to the patentee, a deed of relinquishment, reconveying the title, (conveyed by the patent,) to the United States, should be made. This deed of relinquishment should be recorded, and a certificate should also be produced from the officer having charge of the books in which conveyances are required to be recorded, showing that said deed is so recorded, and that the records of his office do not exhibit any other conveyance or encumbrance of the title to the land. 4th. In cases of a change of entry, as the purchaser will reasonably wish to hold some evidence of his title until the issuing of the patent, he must first designate the tract he desires to enter, and effect the change of entry, and then across the face of the receipt issued upon the original entry, (which will be returned to you from this Office when the case has been de cided,) the Receiver should note the facts of the case, to wit: that the entry has been changed from the tract paid for by said receipt, to another, designating the latter, and the number of certificate issued thereon. The receipt must then be delivered to the party, to be surrendered when the patent is delivered to him. Register and Receiver at JOHN WILSON, Commissioner. No. 668. Repayment refused, for the reason that a certain Conveyance of the Land was not produced. Department OF THE INTERIOR, Repayment cannot be authorized in this case in the absence of the original or a duly certified copy of the deed from Cox and Martin to Dixon. The certificate of the Register of Caddo parish, of the execution of such a deed is not sufficient. He does not certify, nor is he legally constituted judge, as to the formality and legality of the deed, and hence, his certificate, if full to that effect, would not be admissible as a substitute for the deed itself. A. H. H. STUART, Secretary. Commissioner of the General Land Office. No. 669. A Claimant for Repayment of Purchase-money, who failed to file a writ ten application to purchase, not entitled, nor are the Receiver and his sureties liable in this case. DEPARTMENT OF THE INTERIOR, In the case of John H. C. Meyer, submitted in your letter of the 7th June, 1850, and to which my attention has been called by a letter from the Hon. A. C. Dodge, dated the 25th ultimo, it appears that said Meyer paid to the Receiver of public moneys at Dubuque, Iowa, without having previously filed with the Register an application or memorandum in writing, as required by the Act of 24th February, 1810, the sum of $100, which the Receiver omitted to pay over to the United States, or otherwise to account for; the land so paid for being found to have been previously sold, Mr. Meyer asks that the Government will refund to him his purchase-money. But inasmuch as the Receiver's accounts have been settled and closed, and he since dead, and his estate represented to be insolvent, you submit the question, whether Mr. Meyer can maintain an action of covenant against the Receiver and his sureties, under his official bond, for the recovery of the money paid. In reply, I have to state, that the money cannot be refunded to Mr. Meyer by the United States, for two reasons: First, because it was never paid into the Treasury of the United States, and Second, that as the claimant failed to observe the pre-requisites of the law, the payment made by him to the Receiver, was not a legal payment for which the United States is responsible, or for which the Receiver and his sureties are liable, under his official bonds; and I am of the opinion also, although that is a judicial question, which can be determined only by the courts, that Mr. Meyer cannot maintain an action against the Receiver's sureties, under his bond, the conditions of the bond having been complied with by the Receiver accounting to the United States for all the money which legally came into his hands. Had the claimant complied with the law, by making application in due form, &c., the United States would be bound to repay to him the amount paid by him to the Receiver, and look to the Receiver or his sureties for the amount. The receipt of the money under such circumstances, would have been an official act, within the pale of the Receiver's authority, which would have been covered by the official bond, and binding on the United States. But the fault was with the claimant, in not observing the requirements of a public statute, the ignorance of which, however hard it may appear in particular cases, cannot be admitted as a ruling principle. I am, &c., A. H. H. STUART, Secretary. Commissioner of the General Land Office. No. 670. The purchaser having obtained repayment of the Purchase-money, a party producing the receipts and claiming to be an assignee, not entitled. DEPARTMENT OF THE INTERIOR, July 24, 1852. I herewith return the papers submitted with your letter of the 22d inst., in support of the claim of Robert Davidson for repayment, under the Act of 12th January, 1825, of the purchase-money paid per Jackson, Missouri, entries No. 4181 and 4190. The facts in this case appear to be as follows: On the 5th October, 1836, Henry Pease purchased of the United States the lands embraced in these entries, and paid to the Receiver of public moneys, therefor, the sum of $844 50. Having subsequently learned that the sales were void by reason of a prior confirmation of the land to another person, he came forward, in the year 1841, and asked that his purchasemoney might be refunded to him under the said Act of 1825. As no evidence was found in the Land Office that he had transferred or incumbered his title in any manner, and it not being at that time the practice of the office to look beyond the record, no doubt was entertained as to his right to receive the money, and it was accordingly refunded to him. Years after these transactions, Mr. Davidson appeared, and then, for the first time, apprised the Government that shortly after Pease purchased the land of the United States he had sold and conveyed it to him, and he now claims to have the money refunded to him, upon the ground that it was illegally and wrongfully paid to Pease. * * * * It was his, Davidson's, duty to file with the Land Office the proper evidence of his title, and his failure to do so caused the repayment of the money to Pease. The fact of his having had his deed recorded in the county in which the land was situated is immaterial, as it was no notice to the Government. Receipts are not muniments of title, but merely evidence of payments of money to the Receiver. I am, &c. A. H. H. STUART, Secretary. Commissioner of the General Land Office. |