As construed in the case of John M. Rankin (supra), this legislation was intended to afford larger relief than the said act of March 3, 1893, and "should not be limited to validating the transfer of certificates," but was intended "to validate all certificates heretofore (theretofore) issued, in the hands of bona fide holders," notwithstanding any invalidity attending the issuance thereof.

It would seem unnecessary, therefore, to discuss at length the contention of Robords that his contest gives him any right or valid claim under the act of May 14, 1880 (21 Stat., 140), as against the claim of Kendall. It would be sufficient answer to any claim of Robords, even had the fraud charged by him been proven by the testimony adduced by him—which was not the case-that he was shown to be the prime mover in the fraud. He would not be permitted, as such, to have judg ment in his favor, and thus reap advantage through his own wrong. But were he blameless in the entire transaction proof that said certificate was fraudulently obtained would avail him nothing against the right of Kendall under the acts of March 3, 1893, and August 18, 1894. The proposition can not be entertained that in the former act Congress intended in one breath to enable the purchaser under a fraudulent certificate to perfect his title, and in the next, to enact that a contestant might defeat that provision by proving the fraud alone. These acts being in pari materia are to be construed together and so construed they were clearly intended to protect any purchaser mentioned in either against the consequences of invalidity, whether by reason of fraud, or otherwise, of the certificate to which he traced his title.

The only color of title in Bird to the land in question is under said quit claim deed. But as Kendall's deed was duly recorded, thus giving Bird constructive notice thereof, and as Lakey had no title when the deed to Bird was made, the latter could certainly take nothing by his deed, and his application was properly denied. This disposes of the entire case so far as the issues between these parties are concerned. It will be noticed that the act of 1894 directs that

all entries heretofore or hereafter made with such certificates by such purchasers shall be approved, and patent shall issue in the name of the assignees.

Under this provision, following the construction of the act in case of Rankin (supra), said entry will stand, and patent will issue to said Kendall. The only difference in point between the positions of Rankin and Kendall is that the former purchased prior to entry, and Kendall after entry. In both cases the entry was made in the name of the party named in the certificate. The difference is immaterial.

Your office decision as herein modified is affirmed.

ISOLATED TRACT—ACT OF FEBRUARY 26, 1895.
JOHN P. SHANK.

Section 2455 R. S., as amended by the act of February 26, 1895, contemplates that no tract shall be regarded as isolated, within the meaning of the law, unless at the time of the application to have it sold under said section the land surrounding said tract is included within entries, filings or sales, made at least three years prior thereto.

Secretary Bliss to the Commissioner of the General Land Office, March (I. H. L.) 25, 1897. (E. M. R.)

This case involves the SW. of the SW. of Sec. 25, T. 15 N., R. 18 E., Lewistown land district, Montana, and is before the Department upon appeal, by John P. Shank, from your office decision of February 8, 1896.

The record shows that on January 16, 1896, the appellant made application, as a prospective purchaser, to have the above described tract sold under section 2455 of the Revised Statutes of the United States, as amended by the act of February 26, 1895 (28 Stat., 687).

Your office decision states that the records show that the land involved is vacant, but does not come within the statute for the reason that the SE. of the SW. of Sec. 25, same township and range, is # embraced in coal entry No. 1, made by Frank Bland on October 2, 1894, and the SE. 1 of the SE. of Sec. 26, same township and range, is embraced in coal entry No. 2, made March 4, 1895, by Millie L. Conway.

Section 2455 as amended by the act of February 26, 1895, is as follows: Sec. 2455. It shall be lawful for the Commissioner of the General Land Office to order into market and sell for not less than one dollar and twenty-five cents per acre any isolated or disconnected tract or parcel of the public domain less than one quarter section which in his judgment it would be proper to expose to sale after at least thirty days' notice by the land officers of the district in which such lands may be situated: Provided, That lands shall not become so isolated or disconnected until the same have been subject to homest ad entry for a period of three years after the surrounding land has been entered, filed upon, or sold by the government: Provided, That not more than one hundred and sixty acres shall be sold to any one person.

The appellant contends that whilst the entries mentioned in your office decision (those of Bland and Conway) have not been made long enough to bring the land within the time required by the act, to wit, three years, that in fact the land surrounding the tract in controversy has been filed upon for a much longer period than the time required by the act, and he therefore asks for the leversal of your decision.

It will be noted that the section is not mandatory in its requirements. It says, "It shall be lawful for the Commissioner of the General Land Office," and again, "which in his judgment it would be proper to expose to sale;" and I am of opinion that the interpretation placed upon this act by your office is the correct one, conceding the assertion of the

appellant to be correct, that other entries had been allowed and filings made from time to time covering a period greater than that required by the statute, that nevertheless the true meaning of the section contemplated that no tract became isolated within the meaning of the law unless at the time of the application to have it sold, such tract was surrounded by entries or filings, or land already sold, which entries or filings or sale had been made at least three years prior thereto. The decision appealed from is therefore affirmed.

SETTLEMENT RIGHT—ADVERSE CLAIM-ESTOPPEL.

PHILLIPS v. MATTHEWS.

The right of a settler to make homestead entry will not be defeated by the prior application of an adverse claimant, if, by the conduct of said claimant, he is estopped from asserting his claim as against such settler, and it appears that said claim is wanting in good faith.

Secretary Bliss to the Commissioner of the General Land Office, March (I. H. L.)

25, 1897.

(E. M. R.)

This case involves that tract of land in the Gainesville land district in the State of Florida known as the N. of the SE. 4 of Sec. 5, T. 15 S., R. 22 E.

The record shows that on December 15, 1890, Duncan D. Matthews made homestead application for the tract in controversy, together with an affidavit of contest against the claim of the Florida Transit and Peninsular Railroad Company, and subsequently, on November 28, 1892, he was allowed to make homestead entry.

On the second day of December, 1892, Clifton J. Phillips made application to enter under the homestead law the same land, which was rejected, and on January 3, 1893, he filed his affidavit of contest against the entry of Matthews on the ground of prior settlement and superior equities and that the entry of the defendant-respondent was not made in good faith.

On the day following, the local officers issued notices of hearing to be had on February 15, 1893, before the clerk of the circuit court at Ocala; at which time and place the parties appeared and submitted testimony.

November 23, 1893, the local officers issued a new notice setting January 9, 1894, as the date of the new hearing and the local office as the place. May 7, 1894, the local officers rendered their decision in favor of the plaintiff and recommended the cancellation of the entry of the defendant. Upon appeal, your office decision of December 6, 1894, was rendered, wherein was reversed the action of the local officers and the homestead entry of Matthews held intact. Further appeal brings the cause before the Department for final adjudication.

From an examination of the evidence it appears that in November, 1887, Phillips, the contestant, secured the quitclaim of E. W. Agnew, his brother-in-law, or more accurately, one C. E. L. Schmidt, who had entered into a contract for the purchase of this land from the Florida Transit and Peninsular Railway Company, and who, in consideration of an indebtedness due Agnew, left with said Agnew this contract as collateral security, it being in the nature of an equitable mortgage, and having thereafter left the country, the said Agnew, at the time above mentioned, told the plaintiff that he might go into possession of this land.

In November, 1887, the plaintiff commenced his improvements upon the land by building a fence around forty acres; a well was also dug and a house twelve by fourteen feet was built. He cleared ten acres and planted in orange trees, and set out about 15,000 nursery stock trees. In November, 1892, he added three rooms to his house. His intention from the start was to acquire title from the railroad company. In June, 1892, he discovered that the company could not give title, and soon thereafter made settlement under the homestead law. His improvements are worth $2,500.

On June 4, 1892, your office, in reply to a letter from the plaintiff, stated that the tract in controversy was within the limits of the grant to the Florida Railway and Navigation Company and had been selected by said company on September 3, 1887; that on June 18, 1883, your office had passed upon the case of said company r. Schmidt, and rejected the claim of the company, from which action the company had appealed, and on April 22, 1884, the Department had affirmed your action; that thereafter the entry of Schmidt had been canceled; that the tract was at the time of the communication involved in the case of the said company v. Matthews; and that on June 9, 1891, your office had considered the above entitled cause and had decided against the company, and appeal had been taken to the Department.

Subsequently, and to wit, on June 14th, your office, in reply to another communication, informed the plaintiff that the claim of Matthews was based upon an application to enter under the homestead law. The plaintiff, after the receipt of the first letter, saw the defendant and asked him if he laid any claim to the land, and he denied that he laid any claim to any land in that neighborhood. He denied that he had ever had any contest with the railroad company over any land.

After the receipt of the second letter from the then acting Commissioner, the plaintiff went on a visit to his former home in Kentucky, and upon his return ascertained that the defendant was absent, but succeeded in locating him in North Carolina, and wrote to him with a view to securing his relinquishment of all claim in and to the land. He received a letter from the defendant offering to sign any papers that the plaintiff might desire, if he were paid $15.00; whereupon this appellant forwarded to him a check for that amount, which check was used by the defendant-respondent.

It further appears that in July, 1892, the defendant was employed by the plaintiff to work on the land in controversy, upon his orange trees, and was duly paid for such services. Early in December, 1892, Phillips took his wife on the land to live. Prior to this time, and extending back for some time, the plaintiff had kept up a desultory residence upon the land, going out from Ocala, where he was employed in the warehouse of Agnew, to spend a day or night, at which times he occasionally prepared his own meals. About the first of December, 1892, Matthews put up notices on the land, which the plaintiff tore down. Matthews, in answer to the fact that he worked for Phillips upon the land, states that he did not know it was the land in controversy. This land is just on the outskirts of Ocala. He admits that in reply to a letter from the plaintiff he promised to sell his interest for fifteen dollars. He says that at that time he expected to remain in North Carolina at least one year; that he had used the check sent by the plaintiff through mistake; that he had several other checks in his possession and had inadvertently cashed the check. On the day he presented the check he returned to Ocala and shortly thereafter deposited in his name, at the First National Bank of that place, an amount equal to the check. He had the land surveyed on the 3rd of December, 1892, and built a house on the land in January, 1893, and has two or three acres under . enclosure and raised some few things.

The decision of your office was based upon the fact that the application to enter by Matthews, whilst subsequent to some of the improvements of Phillips, was prior to his settlement, and as Matthews' entry was followed within a reasonable time by residence, the settlement and extensive improvements of Phillips could not inure to his advantage because of the pending application of the defendant. When viewed by itself this position is impregnable, but an examination of the entire record shows that the plaintiff is entitled to judgment.

An estoppel is the preclusion of a person from asserting a fact by previous conduct, inconsistent therewith on his own part, or the part of those under whom he claims, or by an adjudication upon his rights which he can not be allowed to call in question (7 American and English Encyclopedia of Law, page 1).

The defendant told the plaintiff that he did not claim any land in that neighborhood and had never had a contest with the railroad company over any land. This it seems, under the authorities, amounted to an estoppel in pais. There was a false representation of a material fact (Pittsburg v. Danforth, 56 N. H., 272), which was knowingly made, and the plaintiff was ignorant of the fact; at least the denial came from the very highest authority-the applicant himself. And in this connection, as intent is a material part of all proceedings before this Department having as an ultimate end the acquisition of title to the public domain, the fact that the applicant disavowed any claim to any land in that neighborhood, would render the claim of record ineffectual as against Phillips. The false representations were apparently made