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No. 671.
The Act of 26th February, 1853, does not embrace debts due by the United

States, but claims only.

August 3, 1853. In reply to your letter of 22d April last, in relation to the sale by the United States since the 28th September, 1850, of lands which have been subsequently found to be swamp or overflowed. I enclose a copy of a letter from the Commissioner of the General Land Office on that subject, dated May 7, 1853. You will perceive from the Commissioner's letter, that the only difficulty apprehended by him in executing the act of the legislature of the State of Michigan in relation to the assignment to her of the purchase-money paid for entries so made, was to be found in the provisions of the Act of Congress of 26th February, 1853, entitled, “An act to prevent frauds upon the Treasury of the United States.” Since the date of that letter, the provisions of that. act have been examined with reference to the assignment or transfer of money paid for lands erroneously sold by the United States; and it has been determined “that such cases do not come within the spirit of the Act of 26th February, 1853, but should be regarded as debts due by the United States.” There would, therefore, seem to be no difficulty now in executing the act.

I am, &c.,

A. H. H. STUART, Secretary. P. Hibbie, Commissioner of Michican Land Office.

No. 672. Where a patent has issued, repayment refused until a Deed of Relinquish

ment should be filed.


December 19, 1853. When a patent has issued, a deed of relinquishment reconveying the title, (conveyed in the patent,) to the United States is required. This deed of relinquishment should be recorded, and a certificate should also be produced from the officer having charge of the books in which conveyences are required to be recorded, to give them validity, showing that said deed is so recorded, and that the records of his office do not exhibit any other conveyance or incumbrance of the land. This is necessary, because by the issue of the patent the title passes from the United States and becomes subject to the local laws of the State, so that to ascertain whether the purchaser has disposed of the title conveyed to him by the United States or not, enquiry must be made of the officer with whom the information of such conveyances is required to be lodged, in order to give them validity. It is also necessary that the fact of recording the deed of relinquishment should be shown in the Recorder's certificate, for the further reason that otherwise the patent might convey the land, and the deed of conveyance be presented for record immediately after his certificate of non-incumbrance has been given, and yet, in some of the States at least, he could not refuse to record it. When no patent has issued, the title of the purchaser is a mere inchoate interest, the transfer of which he may or may not at his option have inscribed upon the county records. In such cases, the affidavit of non-incumbrance is resorted to as the best mode of determining whether such incumbrances exist or not, the fact being solely within the knowledge of the party applying for the repayment, and, therefore, not otherwise ascertainable with certainty, &c., &c.

Very, &c.,

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

No. 673. A party having applied for a change of entry, acquires such a right to the

land so designated, as cannot be defeated by the subsequent application of another to purchase.


December 31, 1855. I herewith return the papers submitted in your letter of the 26th instant, on the appeal of B. B. Siggins, attorney of Stephen Baldwin, from the decision of your office, in reference to land in the Chariton District, Iowa, claimed by him under his application for a change of entry. Having, when the application for a change of entry was made, designated the tracts to which he desired his money applied, (they being then vacant, and the land he intended originally to have entered, not so vacant,) he acquired such a right thereto, in my opinion, as could not be defeated by the application of another, not only nearly a year subsequent to his designation, of such tracts, but after full action had been had on his application for a change, and its allowance communicated to the land officers.

The entry made by Calvin N. Anderson should be cancelled, and the land awarded to Stephen Baldwin. In regard to the excess of purchasemoney between that paid for the original entry and that applicable to the tracts embraced in the change of entry, the return of which, I discover from one of the accompanying papers, has been refused on the ground of the absence of any law authorizing it, I have only to observe, if such is the fact, we cannot supply that absence, but justice would seem to require legislative provision for such cases.

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

No. 674.
Reinstatement of an entry after the refundment of the purchase-moncy, re-


February 27, 1857. Your letter of the 23d inst., submitting various papers connected with the application of Harris Flanagin and Benj. S. Duncan, in regard to certain lands entered at the land office at Washington, Arkansas, by Gabriel W. Denton, has been received. I cannot regard their purchase at a tax sale, of Denton's interest in the land, such an one as would entitle them by virtue thereof to a reinstatement of Denton's entry, after the refundment of the money thereon to the latter in accordance with the prescribed regulations of the Department, and without any notice on their part of such interest, but it is regarded under the circumstances, as affording such just grounds for relief, that no objection is seen to your permitting them to enter, upon payment of the minimum price of $1 25 per acre, the land they wish to secure.

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

No. 675.
A relinquishment of title must accompany applications for repayment

where a Patent has issued.


November 21, 1857. The papers pertaining to the application of William T. Brumel, for repayment of the purchase-money paid, per St. Louis Receipt, No. 7706, are herewith returned, and said application is not granted, for the reason that no relinquishment of title is endorsed on the patent, or accompanies the case, and no certificate from the county clerk or other officer, stating that the records do not exhibit any incumbrances of the land in question, is filed herewith. Where a patent issues, the title becomes subject to State laws, and relinquishments should be required in all cases of this character.

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

No. 676. Repayment where the land had been sold by the original Purchaser, cannot be made until a deed of relinquishment is filed.


October 27, 1858. I return herewith the application of Edith King, administratrix of the estate of John King, deceased, for the repayment of the purchase-money on Batesville, Arkansas, Receipt, No. 8414. It being shown by the report of the Register and Receiver, as also by the letter of William Fort, (attorney for Mrs. King) that the land had been sold by the original purchaser, King, it is necessary that a deed of relinquishment (duly recorded) from King's grantee be filed; said deed to be drawn in favor of the heirs and assigns of King.

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

No. 677. A party to be entitled to repayment, must show that he complied with the law in making his entry, &c.


December 20, 1858. Sir:-Herewith I have the honor to transmit the papers in the disallowed claim of Joseph W. Towne, for repayment of the purchase-money alleged to have been paid to the Receiver of the Danville, Illinois, Land Office, for the southeast quarter of northeast quarter of section 25, township 27, range 14, west, per receipt No. 18971, from which decision Benj. F. Ingraham, attorney for the party, has appealed to you; said appeal having been referred to this Office for report, the following facts, &c., touching the case are respectfully submitted : The Register's certificate, the Receiver's

(Office) receipt, the abstract of lands sold, and register of receipts from the Danville, Illinois, Office, all represent that the east half of southeast quarter section 25, township 27, range 14, west, containing eighty acres, was entered by Joseph W. Towne, on the 26th December, 1855, at $2 50 per acre, amounting to $200. The purchaser's application, (a copy of which is on file,) and Receiver's duplicate receipt represent, that the southeast quarter of northeast quarter and east half of southeast quarter, section 25, township 27, range 14, west, containing one hundred and twenty acres, were applied for and entered by Mr. Towne, at $2 50 per acre, amounting to $300. From this statement it will be seen, that the purchaser's application and Receiver's duplicate receipt call for a forty-acre tract (which had been previously sold to another party) not described in any of the regular returns to this Office, and making a difference of $100 in the amount of the purchase-money. The aid of this Office has been extended to the party, to enable him to show by satisfactory proof, but without effect, that he never received back from the Receiver the sum alleged to have been paid for the southeast quarter of northeast quarter; the previous sale of which was not, in all probability, discovered until after the issue of the duplicate receipt, but prior to the issue of the certificate and regular receipt, which are usually sent to this Office. The

grounds upon which the application for repayment is disallowed are, that the sale to Mr. Towne of the southeast quarter of northeast quarter has never been reported to this Office, nor the money alleged to have been paid therefor, received into the Treasury of the United States; in addition to which, the Act of Congress authorizing purchases of the public land is a contract in which the law has stipulated certain conditions, so as to secure fairness, protect private interests, and save the public from fraud or peculation, by certain checks. When these conditions have not been strictly performed by the one party, to wit, the applicant, it is at his own peril, and the Government is thereby relieved from responsibility. It is not shown that these stipulations were, in this case, strictly complied with by the applicant, and hence the Executive, in the opinion of this Office, has no power to refund, and consequently that could not be done unless Congress so order by special enactment. Very respectfully, your obedient servant,

THOS. A. HENDRICKS, Commissioner. Hon. J. Thompson, Secretary of the Interior.

Affirmed, August 9, 1859, by Secretary Thompson.

No. 678.

For Repayment, affidavit of non-incumbrance required in Pre-emption,

as in other cases.

January 18, 1859.
I have considered your report of the 15th instant, enclosing the applica-
tion of Daniel E. Rouse, for the repayment of the purchase-money on Red
Wing, Minnesota, Receipt, No. 1076.

The entry having been made under the Pre-emption Act of September 4, 1841, it was thought by you unnecessary to require the usual affidavit of non-incumbrance. The same grounds exist in connection with entries under the above Act, by which I was governed in making the decision of September 11, 1858, relative to applications for repayment on illegal entries made under the Act of August 4, 1854, and you will, therefore, extend the requirement contained in the 2d section of the Circular of January 19, 1854, to embrace all cases of repayment, when the entries have been made by virtue of the Act of September 4, 1841. The application of Mr. Rouse is returned, and when the proper affidavit has been filed, you will please submit the case for my approval.

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

No. 679. Applications for Repayment where a Patent has been issued, must be accompanied by a relinquishment, and a certificate of record.


March 25, 1859. I herewith return the application of Hon. H. M. Rice, for the repayment of the purchase-money paid on Stillwater, Minnesota, Receipt, No. 162.

In this case, the patent has been issued and delivered to the patentee. The deed of relinquishment, however, is not accompanied by the certificate of the officer having charge of the land records of the district or county in which the land is situated, showing that said relinquishment is duly recorded, and that no other conveyance or encumbrance of title appears upon his books. The requirement of the Department upon this point must be met, and you will please notify Mr. Rice, that his compliance with the regulations will be necessary to obtain my approval.

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

No. 680. A husband should join his wife in the application for Repayment of Pur

chase-money in a given case.


June 25, 1859. Sir:-I herewith return the application of Mrs. Eliza Jeannette Loweay Allen, for the repayment of the purchase-money paid on Tallahassee, Florida, Receipt, No. 12970.

In this case the applicant having married subsequent to the purchase, I consider it necessary that her husband join in the application, and have to request that you will so advise Mrs. Allen.

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

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