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able per Act of Congress, approved March 22, 1852,) the certificate of location may be assigned, and the patent will be issued to such assignee.)*
The following descriptions of land are exempted from the operations of this
Act; a greater portion by the terms of the Act of 4th September, 1841; the others by express provisions of said Act of 3d March, 1853, first herein referred to.
1st. Lands included in any reservation by any treaty, law, or proclamation of the President of the United States, and lands reserved for salines or other purposes.
2d. Lands reserved for the support of schools, except as to sections sixteen and thirty-six on unsurveyed land as hereinbefore mentioned.
3d. Any Indian reservation to which the title has been, or may be extinguished by the United States at any time during the operation of this Act.
Ath. Sections of land reserved to the United States, alternate to other sections, which may hereafter be granted to the State for the construction of any canal, railroad, or other public improvement, except where the settlements may be made on such land between the time of reservation and the final allotment referred to in Act of 3d March, 1853, chap. 143, 2d sess. 32d Congress.
5th. Sections or fractions of sections included within the limits of any incorporated town.
6th. Every portion of the public lands which has been selected as a site for a city or town.
7th. Every parcel or lot of land actually settled and occupied for the purposes of trade, and not agriculture.
8th. All lands on which are situated any known salines or mines.
9th. Land reserved by competent authority and those claimed under any foreign grant or title.
10th. Lands in the occupation or possession of an Indian tribe. 11th. Lands selected for a military post or within one mile of such post.
Persons claiming the benefits of this Act, are required to file duplicate affidavits, such as the law requires, and to furnish proof by one or more disinterested witnesses, to your entire satisfaction, of the facts necessary to establish the three requisites pointed out in the commencement of these instructions.
The witnesses are to be first duly sworn or affirmed to speak the truth, and the whole truth, touching the subject of inquiry, by some officer competent to administer oaths and affirmations; and, if not too inconvenient, by reason of distance of residence from your office, or other good cause, must be examined by you, and the testimony reduced to writing in your presence, and signed by each witness, and certified by the officer administering the oath or affirmation, who must also join you in certifying as to the respectability and credit of each witness.
In case adverse claims shall be made to the same tract, each claimant must be notified of the time and place of taking testimony, and allowed the privilege of cross-examining the opposite witnesses, and of producing counter-proof, which should also be subject to cross-examination.
When, by reason of distance, sickness, or infirmity, the witnesses cannot come before you, you are authorized to receive their depositions; which must be, in all other respects, conformable to the within regulations.
The notice to adverse claimants should be in writing, and should be served in time to allow at least a day for every twenty miles the party may
* Obsolete. See Circular 23d May, 1856, (No. 616.)
have to travel, in going to the place of taking evidence. The proof, in all cases, should consist of a simple detail of facts merely, and not of statements in broad or general terms, involving conclusions of law. It is your exclusive province to determine the legal conclusions arising from the facts. For instance, a witness should not be permitted to state that a claimant is the “ head of a family,” &c., following the words of the law, but should set forth the facts on which he grounds such allegation; because such a mode of testifying substitutes the judgment of the witness for
and allows him not only to determine the facts, but the law.
A witness may possibly conscientiously testify that a minor son living with a widowed mother, was the head of the family; and, in another case, similar in point of fact, another witness, equally conscientious, might testify that the widowed mother was the head of the family. There cannot be a uniform construction given to the law, if it is carelessly left to the opinion of every witness. You are therefore instructed not to receive as testimony or proof, a general statement, which embodies, in general terms, the conclusions of law, without stating the facts specifically.
The witnesses must state, if the pre-emptor be the “head of a family,” the facts which constitute him such, whether a husband having a wife and children, or a widower, or an unmarried person under twenty-one years of age, having a family, either of relatives or others depending upon him, or hired persons, &c.
All the facts respecting the settlement in person, inhabitancy, or personal residence, the time of commencement, the manner and extent of continuance, as well as those showing the apparent objects, should be stated.
It must be stated, that the claimant made the settlement on the land in person; that he has erected a dwelling upon the land ;* that the claimant lived in it, and made it his home, &c. By this means, you will be enabled to determine whether or not the requisites of the law have been complied with in any given case. Should you decide against a claimant, who, feeling dissatisfied with such decision, may request, in writing, the opinion of this Office thereon, you will forthwith forward all the original papers touching said claim, and a brief report of your reasons for rejecting it; and, in the mean time, will not permit the land claimed to be entered or sold without an order from the Department.
The affidavit of the claimant in reference to the fact of settlement, &c., should not be received. It is, in no case, legal evidence on these points, ånd therefore should not form a part of the proof in reference thereto. The only affidavit required of the claimant is that prescribed by the thirteenth section of the Act of 4th September, 1811, which is to be taken before the Register or Receiver, and cannot be received if taken before any other person. (See form D, hereunto annexed.)
No entry must be permitted until this affidavit is taken. Duplicates thereof must be signed by the claimant, and the fact of the oath being taken must be certified by the Register or Receiver administering it, one copy to be filed in your office, and the other to be transmitted to this Office. Each entry made, by virtue of this act, must be designated by marking on the margin of your quarterly accounts and monthly abstracts, opposite to the tract, the abbreviation « Pre’n 1853,” and on the face of the receipt and of the certificate, “ Pre-emption Act of 1853.”
You will give the No. 1 to the first entry permitted, and continue subsequently unbroken the regular series of numbers for receipts and certificates, whether they are pre-emption entries, or entries at private sale, which will hereafter necessarily be made after the land in your district shall have been offered at public sale. The original proof, affidavit, and receipt, must be filed with the certificate of purchase, in each case; each paper being appropriately endorsed, and transmitted to this Office, with your monthly abstract, which must contain and show the aggregate of lands sold, and the purchase-money, at the foot of the abstract. Also, a separate aggregate of the lands sold, and the purchase-money, under the Pre-emption Act, by virtue of which any entries in that month may be made. No excuse can be allowed for negligence in observing this direction.
* Modified; a dwelling-house erected prior to a pre-emptor's settlement will answer the legal requirement.
The forms for applications, receipts, and certificates, will be the same as those used for private entries.
Very respectfully, gentlemen,
John Wilson, Commissioner. The Register of the Land Office, and Receiver of public moneys,
Land Office at
Declaratory statement for cases where the land has not been offered at public sale.
I, A. B., of
being [the head of a family, or widow, or single man, over the age of twenty-one years, as the case may be, a citizen of the United States, or having filed my declaration to become a citizen, as required by the naturalization laws, as the case may be,] have on the
A. D. 18—, settled and improved the quarter of section number --, in township number
of range number in the district of lands subject to sale at the land office at
and containing acres, which land has not yet been offered at public sale, and thus rendered subject to private entry; and I do hereby declare my intention to claim the said tract of land as a pre-emption right, under the provisions of the Act of 3d March, 1853. Given under my hand, this
A. D. 18(Signed)
A. B. In presence of C. D.
Declaratory statement for cases where the land shall have been offered at public sale.
I, A. B., of —-, being [the head of a family, or widow, or single man over the age of twenty one years, as the case may be, a citizen of the United States, or having filed my declaration to become a citizen as required by the naturalization laws, as the case may be,] have, since the first day of A. D. 18—, settled and improved the
quarter of section number - in township number
of range number in the district of lands subject to sale at the land office at and containing acres, which land has been rendered subject to private entry since the passage of the Act of 3d March, 1853, but prior to my settlement thereon; and I do hereby declare my intention to claim the said tract of land as a pre-emption right, under the provisions of said act. Given under my hand, this
A. D. 18(Signed)
A. B. In
presence of C. D.
Affidavit to be filed in cases, under Act of 3d March, 1853, where the settler shall have
died before proving up and entering his claim.
I, A. B., [executor of the estate of C. D., or administrator of the estate of C. D., or, one of the heirs of C. D., aged years, as the case may be,] do solemnly swear, [or affirm, as the case may be,] that, to the best of my knowledge and belief, the said C. D., who was a settler on the quarter of section number
of township number number , subject to sale at
was not, at the time of his death, the owner of three hundred and twenty acres of land in any State or territory of the United States; that he did not settle upon and improve the above tract of land on speculation, but in good faith to appropriate it to his own exclusive use and benefit; and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he might have acquired from the Government of the United States should enure, in whole or in part, to the benefit of any person except himself. (Signed) A. B., executor, for administrator,
or one of the heirs of C. D., as the case may be.]
I, E. F., Register, [or G. H., Receiver,] of the land office at do hereby certify that the above affidavit was taken and subscribed before
A. D. 18-
E. F., Register or
Affidavit required of Pre-emption Claimant. I, A. B., claiming the right of pre-emption under the provisions of the act of Congress, approved 3d March, 1853, to the quarter of section number --, of township number
of range number subject to sale at
do solemnly swear, [or affirm, as the case may be,] that I am not the owner of three hundred and twenty acres of land in any State or Territory of the United States, nor have I settled upon and improved said land to sell the same on speculation, but in good faith to appropriate it to my own exclusive use or benefit; and that I have not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which I may acquire from the Government of the United States should enure in whole or in part, to the benefit of any person except myself. (Signed)
A. B. I, C. D., Register (or E. F., Receiver) of the land office at do hereby certify, that the above affidavit was taken and subscribed before
A. D. 18-
C. D., Register, or
Brief relative to Assignments of Pre-emption Rights.
The meaning of the clause in the thirteenth section of the Act of 1841, which provides, " That any grant or conveyance which he or she may have made, except in the hands of bona fide purchasers, for a valuable consideration, shall be null and void,” appears to be this :
That where a pre-emptor claims, and represents to another party that he owns the land absolutely, and makes a sale to him, conveying the title thereto, by deed or other instrument of writing, and afterwards a patent issues to the pre-emptor, who then claims, or whose heirs claim the land, in such a case, upon suit being brought, the vendee may plead that he was a bona fide purchaser, for a valuable consideration, and he would be entitled to the full benefit of that plea in the courts. Whether that plea would avail under a mere equitable title, would be for the courts to decide.
The clause in the twelfth section, of similar import, but of apparent conflict, reads as follows:
" And all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void.”
This clause is intended to prevent transfers or assignments of the right of pre-emption. In the other clause, the terms employed are grants and conveyances.
The prohibition in the former is putain and positive. It is, too, in perfect consonance with the pre-emption system. The object is to enable persons to acquire homesteads, not to afford opportunities for speculation.
It has been held by the Supreme Court, (in case of Faw v. Marsteller, 1 Cond. Reps. 337,) that “in the construction of a statute, positive and explicit provisions, comprehending in terms a whole class of cases, are not to be restrained by applying to those cases an implication drawn from subsequent words, unless that implication be very clear, necessary, and irresistible.” (See also, case of United States v. Fisher et al., 1 Cond. Reps. 421.) “If, from a view of the whole law, the evident intention is different from the literal import of the terms employed to express it in a particular part of the law, that intention should prevail.”
The manifest intention of the Act of 1841, is to prohibit assignments of the rights of
In cases where pre-emptors grant or convey the lands by deed, bona fide purchasers are protected against the subsequent claims of the pre-emptor or his heirs, by the thirteenth section clause.
If, however, a purchaser does not take a deed, but accepts a simple assignment of the certificate of purchase, he would not be protected against the pre-emptor or his heirs. He would be presumed to know the law under which the certificate was issued, and he could not therefore be a bona fide purchaser, being cognizant of the inability of the pre-emptor to assign.
The clause relating to grants and conveyances does not qualify change, or affect the clause respecting transfers and assignments.
It is therefore considered, that an assignee of a pre-emption right acquires no title whatever, and no rights that should be respected or protected.
W. W. LESTER. October 3, 1857.