payment of money paid by Alexander Green on preemption cash entry No. 6966, made at Duluth, Minnesota.

The records of your office show that the entry was held for cancellation December 28, 1885, for the reason that the proof showed that the entryman had failed to reside on the land for six months continuously prior to the date of entry, and was finally canceled for the above reason, September 17, 1886.

By mortgage executed February 29, 1884, the date of entry, Green mortgaged the land to Fraser in the sum of $275, to secure a promissory note for that amount, payable in six months, with interest at ten per cent. The mortgage also authorized the mortgagee, in case of default, to sell the land at public auction, and from the proceeds retain the principal and interest, also the sum of $50 as attorney fees. It also provided that the mortgagee should receive $50 attorney fees in case of foreclosure of the mortgage. No proceedings have ever been had under the authority to sell the land, nor has there been any foreclosure of the mortgage.

The act of June 16, 1880 (21 Stat., 287), authorizes, in section 2, the repayment of money expended on entries erroneously allowed, to the person who made the entry, or to his heirs or assigns.

Section 3334, Revised Laws of Minnesota, 1905, construing the word "conveyance," states that it shall include every instrument in writing whereby any interest in real estate is created, aliened, mortgaged or assigned, thus recognizing the distinction between an assignee and a mortgagee. Section 4441 provides that a mortgage on real property is not to be deemed a conveyance, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure. In other words, under the laws of Minnesota a mortgagee is simply a creditor whose debt is secured by means of a lien on the land. Under a similar state of the law in the State of California, a mortgagee was held not to be an assignee within the meaning of the above act for the repayment of moneys. (See California Loan and Trust Company, 24 L. D., 246.)

It is apparent therefore that the applicant is not entitled to repayment under the act of June 16, 1880.

The act of March 26, 1908 (35 Stat., 48), authorized the repayment of money where the application for entry, or proof, has been rejected, and there is no fraud in connection with the application, to the person who made such application for entry, or proof, or to his legal representatives. The instructions of April 29, 1908 (36 L. D., 388), recognized heirs, executors and administrators as legal representatives under this act.

It is not necessary to decide here whether a purchaser of the land before cancellation be a legal representative or not. It is clear that the mortgagee, simply having a lien upon the land for the payment of

a debt, is not a legal representative, who certainly must be a party succeeding to all the rights of the entryman. Your decision is therefore affirmed.

HOMESTEAD ENTRY-QUALIFICATIONS-OWNERSHIP OF LAND.

GALLANT V. COLE.

One who holds land under an unperfected desert-land entry is not the proprietor thereof within the meaning of the statute holding disqualified to make homestead entry one who is the proprietor of more than 160 acres of land. A transfer of land by one owning more than 160 acres, for the purpose of qualifying himself to make a homestead entry, is not a violation of law, provided the transfer is final and made in good faith.

First Assistant Secretary Pierce to the Commissioner of the General (W. C. P.) Land Office, August 17, 1909.

(O. W. L.)

John W. Gallant has appealed from your decision of April 28, 1909, affirming the action of the register and receiver and dismissing his contest affidavit filed against homestead entry No. 781, Ute series, made November 1, 1905, by John E. Cole, at Montrose, Colorado, for the SE. SW. and lot 7, Sec. 6, T. 15 S., R. 95 W., and S. Į SE. 1. Sec. 1, T. 15 S., R. 96 W., 6th P. M.

The affidavit of contest, which was filed April 23, 1907, alleged that Cole was disqualified to make homestead entry because he was the proprietor of more than 160 acres of land.

It appears that Cole had held the land embraced in his homestead entry for several years prior thereto under a preemption entry and desert land entry, and, according to his testimony, had expended about three thousand dollars in the improvement thereof prior to making homestead entry. He had been notified by your office that his desert land entry would be canceled upon failure to make final proof of the reclamation of the land. Cole, on October 30, 1905, went to the office of Milton R. Welch, the United States Commissioner, for the purpose of making a homestead entry for the land as he was unable to fulfill the requirements of the desert land law. The United States Commissioner showed him the homestead affidavit. Cole, at that time, owned 200 acres of land in private ownership and was the assignee to the extent of 80 acres of unperfected desert land entries. Cole noticed in the affidavit the requirement that he must swear that he was not the owner of more than 160 acres of land. The United States Commissioner thereupon informed him that he was disqualified. Cole thereupon stated that his son, W. S. Cole, then about twenty-eight years of age, had worked for him since attaining majority without

obtaining any compensation, and that he would just give his son 40 acres of land. The Commissioner advised him that the 80 acres which he held as assignee under the desert land law would not be considered in computing his qualifications. The United States Commissioner thereupon drew up a deed by which the father conveyed 40 acres to his son, the deed stating a consideration of four hundred dollars and being subject to a mortgage the payment of which, however, the father assumed. The deed which was executed in the morning was then left by the father with the Commissioner, with instructions to file the same of record. In the afternoon, Cole executed the homestead affidavit and the deed was filed for record the following day. After record, it was returned to the father who retained the same with his other papers. It appears that the son had no knowledge of the conveyance until about three months prior to the filing of the contest affidavit. In March, 1907, the taxes, which for the years 1906 and 1907 had been assessed to the son, were paid by W. S. Cole. The father testifies that he had previously to executing the deed told the son to stick to him and he would make it all right.

It is first contended that the deed from father to son is invalid, for the reason that it was never delivered to the son. The weight of authority appears to be that a delivery to the recorder of a deed, beneficial to the grantee without the grantee's knowledge, is a valid delivery. Section 694, Revised Statutes of Colorado, 1908, provides that,

All deeds . . . . may be recorded in the office of the recorder of the county wherein such real estate is situate, and from and after the filing thereof for record in such office and not before, such deeds, bonds and agreements in writing shall take effect as to subsequent bona fide purchasers and encumbrancers by mortgage, judgment or otherwise not having notice thereof.

In Devlin on Deeds, Section 291 of the Second Edition, the rule is laid down as follows:

In other words, it may be said that the delivery is valid when it appears that a deed was placed on record, with the intent that it should pass the title to the grantee although never actually delivered to the grantee.

Under the above, it is apparent that the delivery of the deed to the United States Commissioner and its subsequent recording was a valid delivery.

It is next urged that the deed was not made in good faith but was a mere fraudulent device for evading the entryman's disqualification. The question of the validity of a conveyance made for the purpose of qualifying an individual to make a homestead entry has been before the Department several times, and the validity thereof must naturally be determined by the facts and circumstances concerning each particular case.

In the case of Leitch v. Moen (18 L. D., 397), it was held that a fraudulent deed, purporting to convey a tract from the homesteader to his son, will not operate to relieve the entryman from the statutory disqualification. The deed in that case purported to convey a fee simple title reserving a life estate to the father and his wife. The deed was not recorded, the grantor still retaining possession of the land and later, in several instruments, still claimed to be owner thereof.

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In Mason . Cromwell (24 L. D., 248), the entryman, for the purpose of qualifying himself, executed a deed transferring the land to his sister. He thereupon sent the deed to an unknown person with instructions that it be forwarded to his wife. The deed was not recorded until long after the affidavit of contest had been filed, and the entryman thereafter had for a considerable time the power of recalling the deed. The sister was in that case employed simply “as an unconscious beneficiary for the express purpose of qualifying Mason to make entry."

In Heath . Dotson (27 L. D., 546) it is held that a transfer of land in order to enable the claimant to make the oath required of homestead applicants, is not a violation of the acts of May 2, 1890, or March 3, 1891, provided the sale is final and made in good faith.

In Auker e. Young (37 L. D., 176) it was held to be a mere collusive device to evade the law, the facts being that the entryman. owned about 1800 acres of land at the time of making entry. Shortly prior to making the homestead entry, the entryman had acknowledged a deed conveying nearly all his land to his wife. This deed was never recorded and subsequent to its execution he executed mortgages of the land so conveyed, and in other ways held himself out to be the owner thereof.

In the present case it is apparent that the motive of making the gift at the particular time it was made was to qualify the entryman. The deed, however, was immediately recorded and, from all the testimony, I am convinced that the gift was in good faith and final. The case is, therefore, analogous to that of Heath . Dotson, supra. It is next contended that, assuming that the deed conveyed 40 acres to the son, the entryman was still disqualified by reason of the 80 acres held as assignee under the desert land law. In support of this it is contended that a desert entry is a contract between the entryman and the Government by which the land is paid for in partial instalments, and that the Department has held that one who holds land under a contract of purchase under which all payments had not yet been made, is disqualified, citing Smith v. Longpre (32 L. D., 226) and Jacob J. Rehart (35 L. D., 615). In Smith . Longpre, the contract for purchase was between the entryman and the

Union Pacific Railroad Company, who held the land purchased in private ownership. In the case of Jacob J. Rehart, the contract was between the entryman and the State of California which had selected the land so purchased, the homestead entry, however, being made prior to the approval of the selection by this Department. The only thing to be done in the case of the state selection was that this Department ascertain whether the base offered by the state for its selection was valid.

The above two cases are essentially different from that of land held under desert land entry in which, in addition to the payments which are required to be made, the entryman must submit proof of the reclamation, cultivation and requisite expenditure. Childs v. Ayerst et al. (19 L. D., 96) held that the possession of a quarter section of land under an unperfected timber culture entry did not disqualify a homestead applicant. Although the desert land entryman may have an inchoate right in the land, he does not acquire any equitable title until final proof and payment have been made.

It is urged that the instructions of July 14, 1905 (34 L. D., 29), recognize the holder of an unperfected desert land entry as the proprietor thereof. These instructions related to the provisions of the act of June 17, 1902 (32 Stat., 388), relative to the furnishing of water to lands held in private ownership within an irrigation project. It was stated therein:

While such entrymen or assignees are not invested with a legal title, they have such an equitable right and interest in the land as to constitute them proprietors within the spirit and purpose of the act of June 17, 1902, and the right to the use of water may be granted to such proprietors.

This was by no means a holding that a desert land entryman is a proprietor of land within the meaning of the term as used in section 5 of the act of March 3, 1891 (26 Stat., 1095). It simply held that the spirit of the act of June 17, 1902, permitted the Government to furnish water to others than homestead entrymen who had a claim to land under the public land laws within an irrigation project.

Your decision is, therefore, affirmed.

HEIRS OF DEWOLF v. MOORE.

Petition for re-review of departmental decision of August 10, 1908, 37 L. D., 110, 723, denied by First Assistant Secretary Pierce August 19, 1909.