Said undisposed of lands are subject to settlement and entry under the provisions of the act of August 23, 1894 (28 Stat., 491), and you will therefore allow homestead entries for said lands, indorsing on the application and your abstract the words "Rush Lake Valley reservation, act of August 23, 1894." Upon request of entrymen you will inform them at what rate per acre the lands entered by them have been appraised, as well as the appraised price of the fencing, if any.. Entrymen for these lands may commute their entries after fourteen months from the date of settlement, with full payment in cash; or after submitting ordinary five-year proof and after its acceptance, may pay for the land the full amount of the appraised value thereof, without interest, or may make payment in five equal instalments, the first instalment to be made one year after the acceptance of final proof, and subsequent payments to be made annually thereafter, interest to be charged at the rate of four per cent per annum from the date of the acceptance of the final proof until all payments are

made.

In case the full amount is paid after fourteen months from date of settlement you will, if the proof is satisfactory, issue cash certificate and receipt; and in the event regular final proof is made and accompanied by full payment you will issue final certificate and receipt; but when partial payments are made the receiver will issue a receipt only, for the amount of principal and interest paid, and at the time the last payment is made will issue the final papers as in ordinary homestead entries. In issuing final papers you will make proper notations thereon, as well as on the abstracts, to show that the entry covers land in the Rush Lake Valley reservation.

The same ruling as to the allowance of credit for residence prior to entry and for military service applies to entries under said act of August 23, 1894, as to other homestead entries.

Where, upon submitting final proofs, the entrymen elect to make payment for the lands entered in five annual installments, you will make the usual charges for reducing the testimony to writing, but as the final certificate and receipt cannot be issued until the last payment is made, you cannot charge the final commissions until said final certificate and receipt are issued.

Where the entrymen submit final proofs and elect to pay for the lands in installments you will, if the proofs are acceptable to you, make proper notes on your records showing that satisfactory proof has been made and the dates upon which the partial payments must be made and will then transmit the proof to this office for filing with the original entries.

There are no guarantees to be taken in order to secure the payments of the installments but if, when each installment is due, any

entryman fails to pay the same you will report the matter to this office for action.

On February 15, 1900 (29 L. D., 501), the Department held that lands within an abandoned military reservation, opened to disposal under the act of August 23, 1894, are subject to townsite entry under the provisions of section 2387, R. S., the lands when so entered to be paid for at the appraised price. The appraised list shows that lot 1, Sec. 24, T. 4 S., R. 5 W., is within the limits of the town of Stockton.

The disposal of lot 1, Sec. 24, lot 7, Sec. 25, S. SE. 1, Sec. 26, NW. NE. 1. E. 1 NW. 1, Sec. 35, T. 4 S., R. 5 W., and lots 7, 8, 9, 1 and NW. NE. 4, Sec. 10, T. 5 S., R. 5 W., is subject to the right of way of the Oregon Short Line Railroad Company; and the disposal of lot 5, Sec. 25, NE. † NE. 4, W. NE. 4, NW. † SE. 1, SE. ‡ SW.

1, Sec. 35, T. 4 S., R. 5 W., and NW. NE. and lots 6, 7, 8, 9, 10, Sec. 10, T. 5 S., R. 5 W., is subject to the right of way of the Salt Lake and Deep Creek Railway Company.

Very respectfully,

Approved:

FRANK PIERCE,

FRED DENNETT,

Commissioner.

Where proceedings are instituted by the government against a final entry which has been mortgaged or transferred, and during the pendency of such proceedings the entryman files a relinquishment, the entry should not be canceled until final decision upon the rights of the mortgagee or transferee, and no application to enter the land should be received until the pending proceedings have been disposed of and the entry formally canceled upon the records of the local office.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, September 15, 1909. (J. H. T.)

April 26, 1902, Henry Gimbel made homestead entry for the SW. 1, Sec. 8, T. 147 N., R. 73 W., 5th P. M., Bismarck, North Dakota, land district. Commutation proof was submitted March 18, 1904, and cash certificate issued thereon April 25, 1904.

Adverse report by a special agent was made on said entry, and by your office letter "P" of May 16, 1905, it was directed that hearing be ordered upon the following charge:

That claimant never established a bona fide residence on the land, but lived with his father near Harvey, North Dakota, and made occasional visits to the

land; that the house was not habitable, and that prior to making proof he executed the following mortgages against the land:

December 14, 1903, to Sayre Strong Grain & Mercantile Co., $292.00; December 28, 1903, to W. H. Bashaw, $400.00; December 28, 1903, to J. W. Shelby, $60.00; December 31, 1903, to Sayre Strong Grain and Mercantile Co., $272.00; January 2, 1904, to Adam Lesmeister, $150.00; and that subsequent to proof, he executed three other mortgages.

The entryman and the mortgagees were notified of the charges, and hearing was duly had thereon; and on July 22, 1908, the local officers rendered their decision holding that

Claimant wholly failed to establish and maintain bona fide residence on the land in question. No evidence of intention of fraud is discovered, and we recommend the rejection of the proof and that the entry be held intact subject to future compliance with law.

August 29, 1908, the local officers transmitted the record to your office, together with a relinquishment executed by Gimbel and filed in the local office August 28, 1908, and reported that they had canceled the entry on the relinquishment. They also reported that at the time the relinquishment was filed, Edward Hannemann made homestead application for the said land, and that they had suspended the application of Hannemann pending the determination of the case of the Government against Gimbel. And they further stated that "if we were to put this application to record, the rights of the different creditors of Gimbel would be jeopardized."

By your decision of March 22, 1909, you found that the evidence. showed that Gimbel had failed to comply with the law, and you therefore held his entry for cancellation. You stated that—

Inasmuch as the record shows transfer subsequent to issuance of the cash papers, you should not have noted the entry as canceled upon the relinquishment by the entryman, not joined in by such transferees, as their showing was entitled to consideration before cancellation of the entry. Said entry not having been properly canceled when the application to enter was filed, the latter must be rejected.

Hannemann has appealed from that part of your decision which rejected his application. No appeal has been filed by Gimbel, or any of the mortgagees, and therefore as to them your decision is final.

Hannemann in his appeal insists that his application should be allowed, in view of the fact that Gimbel relinquished all of his interest in the land. He states that he is residing upon and improving the land as an actual bona fide homesteader.

It is well settled that where an entryman has transferred or mortgaged the land after receiving his final certificate, he will not be permitted to relinquish the same and thereby defeat the rights of the transferee or mortgagee. (Addison W. Hastie, 8 L. D., 618; Patrick H. McDonald, 13 L. D., 37; Richard F. Hafeman, 14 L. D., 644; Harlan P. Allen, 14 L. D., 224; Paul v. Wiseman, 21 L. D., 12.)

If it should be held that an entryman who has submitted final proof and has transferred or mortgaged the land, which appears of record in the local land office, has the right to relinquish the entry so as to clear the record for entry at once by another applicant, it would put into the hands of such entryman the power to victimize his transferee or mortgagee, although title to the land had been fully earned by compliance with law. The right of an entryman to transfer the land after satisfactory final proof is fully recognized. To recognize his right to relinquish such entry in the face of a record transfer or encumbrance, would permit him to sell his relinquishment and have the entry canceled thereon. The land would then be subject to entry. It might be entered by the person buying the relinquishment, with full knowledge of all the facts, in which case the latter entryman would be in no position to complain of any loss which might be incurred by the subsequent cancellation of his entry. But the land upon cancellation of the final entry by relinquishment might be entered by an innocent person, and great loss and injustice might be visited upon him if it were afterwards shown by the transferee or mortgagee that patent should issue upon the prior entry. There are, therefore, sufficient administrative reasons why the final entry should not be canceled under such circumstances until final decision is rendered upon the rights of the transferees or mortgagees; and no application to enter the land should be received until the pending proceedings have been disposed of, the entry formally ordered canceled and notation made thereof upon the local office records.

Furthermore, it cannot be known under such circumstances whether the entryman has any right to relinquish the entry until final decision. is rendered, because if the law has been complied with, the transferees or mortgagees are entitled to have patent issued, even over the protest of the entryman. To accept and at once note such a relinquishment would be to decide adversely to the encumbrance claimants before proceeding to adjudicate their claims; to take action against them, and afterwards pass upon their rights. The record should remain in statu quo until final decision.

Gimbel's entry should not have been canceled upon his relinquishment under the circumstances, but the entry should stand or fall by judgment upon the evidence submitted. If the law was complied with, then patent should issue for the protection of the mortgagees.

The record clearly shows that Gimbel failed to comply with the homestead law, and therefore his entry will be canceled on the Government proceedings. Hannemann cannot be accorded any rights by reason of his pending application; but if, as alleged, he is a bona fide settler on the land, and if there is no other settler thereon, he

will be protected provided he files application therefor within three months from date of cancellation of Gimbel's entry.

Your decision is affirmed.

HOMESTEAD ENTRY-QUALIFICATION OF ENTRYMAN-OWNERSHIP OF

LAND.

REIBER V. STAUFFACHER.

One holding the naked legal title to a tract of land in which he has no beneficial interest but holds as mere dry trustee for another who paid the consideration therefor is not the proprietor thereof within the meaning of section 2289 of the Revised Statutes, declaring disqualified to make homestead entry one who is the proprietor of more than 160 acres of land in any State or Territory.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, September 15, 1909.

(J. R. W.)

Henry J. Stauffacher appealed from your decision of January 16, 1909, in contest of George Reiber, canceling Stauffacher's homestead entry for lots 1, 2, and S. NE. 1, Sec. 6, T. 8 N., R. 31 E., W. M., Walla Walla, Washington.

February 20, 1905, Stauffacher made entry which Reiber contested and April 9, 1907, by amended affidavit charged that Stauffacher at date of his entry was owner of six hundred and forty acres in California and that his entry was for benefit of himself and others with intent to convey title when acquired to such persons. Hearing was had in which both parties took part. April 29, 1908, the local office found defendant was owner of the land in California at date of his entry and recommended cancellation of the entry which you affirmed. August, 1904, defendant signed a blank application to buy State lands at request of Henry B. Schindler, an uncle, who said it was in a deal. Defendant testified he was not sworn to it, and this is corroborated by the paper which shows different inks and handwriting. The paper was taken by the uncle to a notary who signed a jurat that it was sworn to before him. The uncle sent it to the State land office where, January 24, 1905, certificate of sale issued to defendant's name for Sec. 3, T. 20 S., R. 20 E., showing payment of $322.80, onefifth of sale price. January 19, 1906, balance was paid and State patent issued to defendant. Defendant claims to have known nothing of these things, paid nothing, knew nothing of it till after issue of patent, and has tendered return to the State of any right he has.

Contestant showed that October 2, 1905, defendant made a power of attorney to A. D. Schindler to act for him in forming a reclamation district as to "lands owned by me on which this power applied,"