b. PROCEEDINGS TO CORRECT. ALVIN M. COLLINS. Commissioner MCFARLAND to Register and Receiver, Worthington, Minn., Sept. 19, 1882. In reply to a request for correction of error in patent never delivered from the local office, you are advised that it will be necessary for Mr. Collins to make affidavit that he has never received the patent, and that he has not sold the land therein described, and furnish this office with the certificate of the recorder of the county in which the land lies, that as shown by the records the same has not been encumbered by him or any one claiming under him. When the affidavit and certificate are received, should all be found correct, the erroneous patent will be canceled and a new one issued. ALEXANDER CHABOILLEZ. Name in Patent.-A patent may, on proper application, be corrected'so that the patentee's name shall agree with his signature. But if the claimant signed his name incorrectly in his application, his remedy is in the courts, and the Land Department has no authority to correct his mistake. Commissioner MCFARLAND to Register and Receiver, Crookston, Minn, June 15, 1882. I am in receipt of your letter of May 29, 1882, transmitting patent issued by this office July 23, 1880, to Alexander Chaboillez for the W. 1⁄2 N. E. 4, N. W. 4 S. E. 4, N. E. 4 S. W. 4, 8, 143, 36, upon cash entry No. 449. made at Detroit, Minn., March 27, 1876. Accompanying said patent is an affidavit executed by D. B. Searle, alleging that the said Searle is the attorney in fact for the entry party (a copy of power of attorney being filed to corroborate this statement); that by virtue of his power of attorney he entered the land described for said entry party, and sold the same to one John L. Merriam, who is now the lawful owner of said land. He further declares that the true name of the entryman is Alexander Cohboillez, and not Chaboillez, as written in the patent, and asks that the name in said patent may be corrected accordingly. In every place where the applicant's name appears in the papers relating to the case, except the signatures, the name is spelled as in the patent, Chaboillez, clearly indicating the sound of the name, which corresponds with that given in the spelling of the name by the claimant himself—Chahboillez. An entirely different name is given in the affidavit of Searle, Cohboillez, not susceptible of pronunciation in the same way as claimant's signature. While the difference in orthography of the name between claimant's signature and the writing in the patent is not a material one and can in no manner affect his title to the land, I am of opinion that the patent may be corrected, upon proper application, so as to agree with his signature; but in no event will a name entirely different from that signed by the applicant be inserted in the patent. If the claimant signed his name incorrectly when making application to enter the land, his remedy lies in the courts, and this office has no authority to correct his mistakes. c.-PROCEedings TO VACATE. MARY YANCY. Suit to Set Aside Patent.-As the applicant herein may assert her right in the courts, and the Government has no interest in the land involved, the application for the institution of suit to set aside certain patents is denied. Secretary LAMAR to Commissioner SPARKS, February 3, 1886. It may be, as stated in your letter, that the issue of patents to Taylor and Parmer was erroneous, but it is not evident what interest the United States now has in the premises. There does not seem to be any reason why Mrs. Yancy may not assert any legal or equitable right she may have in the land, in the courts of the country in her name. (See Bagnell vs. Broderick, 13 Pet. U. S., 436; Brush vs. Ware, 15 Pet. U. S., 93; Garland vs. Wynn, 20 How., 6; Samson vs. Smiley, 13 Wall., 91; Bohall vs. Dilla, 114 U. S., 47, 12 L. O., 78.) The Supreme Court in the case of the United States vs. Minor (114 U. S., 233; 12 L. O., 106), say: "If by the case as made by the bill, Spence's claim had covered all the land patented to Minor, it would present the question whether the United States could bring this suit for Spence's benefit. The Government in that case would certainly have no interest in the land when recovered, as it must go to Spence without any further compensation. And it may become a grave question in some future case of this character how far the officers of the Government can be permitted, when it has no interest in the property or in the subject of the litigation, to use its name to set aside its own patent, for which it has received full compensation, for the benefit of a rival claimant." The court did not decide that question, as it did not properly arise in the case before them. In the present case it is clear that the Government has no interest in the land, and I see no reason why Mrs. Yancy should not assert her rights in the courts in her own name. The request of her attorney, therefore, should be denied, and you will so direct. ALEXANDER MOORE ET AL. Expense-Hearing-Fraud-Patented Land.-Where one attacks an existing patent on allegations of fraud with the purpose of himself entering on vacation of the patent, and a hearing is ordered to ascertain the facts, he should make such full prima facie showing at his own expense as will enable the Land Department to decide whether it will request suit to vacate the patent. If the party attacked desires to rebut such prima facie showing, he should submit his testimony at his own expense. Secretary TELLER to Commissioner MCFARLAND, February 27, 1884. On June 18th last, I considered the respective applications of Alexander Moore et al., for proceedings to set aside the patents under the pre-emption laws, and the lists to the State of California for the subdivisional parts of Sec. 12, Tp. 1 N., R. 1 E., in the San Francisco, California, land district. The applicants claiming that the tracts in question are coal lands, and not subject to such patents and listing, applied to purchase them under the Act of March 3, 1873 (17 Stat., 607), and filed affidavits tending to show that the lands were of such character. As preliminary to the proceedings asked for, I directed that you order a hearing to ascertain the facts. Under date of the 20th instant, you transmit to me a letter from the local officers to you, from which it appears that they ordered such hearing, that all parties in interest were present upon the day assigned, but that no testimony was submitted in consequence of disagreement between them as to which party should deposit money therefor. The local officers thereupon asked instructions from you "to govern this and similar cases," and also "where (aside from a homestead entry) an entry is attacked for non-compliance with law, which party is to be held responsible, and required to deposit for cost of testimony, or whether each must pay for testimony submitted by them," and you transmit the same, with accompanying papers, to this Department. Without intending to establish any new rule of general practice, I think that where one attacks an existing patent on allegations of fraud, with the purpose of himself entering the land on vacation of the patent, and hearing is ordered to ascertain the facts, he should made such full prima facie showing at his own expense, as will enable this Department to decide whether it will request suit to vacate the patent. If the party attacked desires to rebut such prima facie showing, he also should submit his testimony at the hearing at his own expense, unless he elects to let the matter proceed and take the risk of making his defense in court; and you will direct the local officers to apply this ruling to the present case. BARTOLO VIGIL. Vacation of Patent-Report of Special Agent.-The report of a special agent, to constitute sufficient ground for the recommendation of suit to vacate a patent, should, when not resting on the personal knowledge of the agent, be supported, if obtainable, by at least two afhdavits of persons having a personal knowledge of the facts relied upon to secure the vacation of the patent. Secretary LAMAR to Commissioner SPARKS, December 4, 1886. If the matters stated by the special agent be true, the entry and patent thereon were unquestionably obtained through unmitigated fraud and perjury, and should be set aside. Beyond a knowledge of the condition of the land in January last, when it was visited, nearly four years after final proof was made-the special agent has no personal knowledge in regard to the facts on which his charges of fraud and perjury are based, and in the framing of them has relied entirely upon what he heard others say, who were not under oath at the time. After all the formalties and pre-requisites prescribed by law have been, apparently, complied with by the entryman, it seems to me it would be unwise to ask the Attorney-General to begin proceedings to secure the cancellation of the patent, on the report of a special agent, based on hearsay, as to the matters which alone could bring about the result sought to be accomplished. The agent gives the names of parties, who he says will prove the matters alleged. He should have gone further and furnished the affidavits of at least two persons, who would relate such facts as came under their observation, tending to sustain the charges made. If the facts thus disclosed are such as, uncontroverted, would present a case of fraud and perjury, suit will be recommended. In the future you will please cause to be pursued, in similar cases, the course herein indicated, whenever such testimony is obtainable; and especially whenever the agent is unable to speak from personal knowledge and observation as to the material facts of the case. WILLIAM W. WILSON. Suit to vacate patent, obtained by fraudulent proof as to compliance with law, will not be advised where it appears that the land has passed into the hands of a transferee, in the absence of evidence that such transferee had knowledge of the fraudulent character of the final proof. Acting Secretary MULDROW to Acting Commissioner STOCKSLAGER, December 12, 1887. (6 L. D., 395; 15 C. L. O., 26.) Creating two additional land districts and chang- ing the boundaries of the Watertown district. . Dakota. Accepting the agreement submitted by Crow In dians for the sale of a portion of their reservation. Montana. Amending act donating public land to certain States and Territories for agricultural colleges. Creating two additional land districts in Accepting the agreement with the Shoshone and Bannock Indians for the sale of a portion of Authorizing the sale of certain lots in city of Hot Accepting the agreement with Crow Indians for the sale of a portion of their reservation . Authorizing the sale of the Fort Abercrombie Mil Right of way to certain parties over land and water Right of way for railroad and telegraph line through the lands of the Choctaw and Chicka- Amending the act donating public land to certain Establishing a land office at Lamar Establishing two additional land districts in. Nebraska. Right of way through the Fort Selden Military Authorizing the sale of certain land in Chicago. Amending Act granting right of way through the lands of the Choctaw and Chickasaw Indians. Right of way through Fort Russell and Fort Lar amie Military Reservations. Right of way through Indian Territory for rail- Right of way through Military Reservation at Forfeiting lands granted to the Atlantic and Pacific Right of way through Indian Territory for rail- To sell land at Fort Brady. Forfeiting certain grants of land made to States for railroad purposes. Providing for taxation for railroad-grant lands. Kansas. May 14, '84. 34 19 22 Kansas. June 11, '84. 40 June June 20, '84. 49 28, '84. Õ#R 8 R pR g 337 436 Vol. 24. |