The state journal., 1878-04-26
Important Decision.
Boardman plaintiff vs.. Husband defen-
dant.

TRIAL BEFORE TIE COURT, KREKEL
JUDGE.
This is an action in ejectment, by which
plaintiff, Boardman, seeks to recover o
defendant, Husband, the East halt OF the
Northeast quarter, and the Northwest
| quarter OF the Northeast quarter OF section
| Z, in township 65, range 40, in Atchison
| county. in this district. Plaintiff bases his
right of recovery on location OF Kenuc-
ky agricultural college land scrip, made
by one Widdicomb, August 1st, 1866, in
the Boonvile land office. patent issued
thereon, dated May 23rd, 1871, and chain of
title under it.
The defendant claims the land under
preemption right, and patent thereon ted
April 10Th, 1873. The testimony tends to
show that the land in controversy was
offered at public sale under proclamation
OF the President, of October 11th, 1917, and
after January LIST, 1913, became subject
to private entry, that as early as 1861 one
Clark had entered this same land; that
said last entry for some cause not appear
ing, had been cancelled; that the land
remained in this condition until the loca-
tiop by Widdicome in 1866. There is no
evidence that the land in controversy was
IN any way withdrawn from private entry,
nor any testimony tending to show that
it was withheld from such entry, unless ii
be inferred from the wording Of the
communications between the officers OF
the land department, in evidence. In these
communications regarding the land il
controversy, the land is treated as at
tected by the 9th paragraph OF Il circular
to registers and receivers OF January lst,
1886.
Said paragraph is as follows: ''When-
eyer you have reason to believe that any
tract or tracts in your district heretofore
offered at public sale. may have been M
properly withheld from private entry, il
CONSEQUENCE OF errors in your books, or
in marking the sales upon your maps, or
from any other cause whatever, you will
seek Information from this office in rela-
ton to such cases; and ii it should appear
that the lands have teen thus erroneously
withheld from private entry, you are par
ticularly required to give notice. OF the
tact by public advertisement in the most
convenient newspaper, and to be put up
in suitable places, setting forth that at Il
particular hour and day, therein to be
mentioned, you will be prepared to receive
applications to enter the land designated
in such notice, This notice should be
given at least 80 days before entities are
to be received ard in no event will you
allow any such lands to be entered or
located before the expiration OF the time
thus prescribed" 1t appears in evidence
that when Widdicomb's location, made
in 1866, carne up for patenting in 1871,
j. l.. Husband, then clerk in the land
Office at Washington, approached Nathan
| iel Childs, q clerk in the same depart
| ment, who had charge of examining and
| reporting on the lands to be patented, and
| asked him to cancel the Widdicomb loca-
| ton las he wanted to enter the land by
| homestead or .p.eemption. Regarding
| this, Mr.. Childs, who is witness tor
plaintiff, testifes: u. L. Husband the son
of the defendant in this case, was clerk
in the General Land Office at the time, and
he came to me and requested me to eau
Gel this tract entered by Thomas Wddi-
comb, stating at the time that he in
tended to enter the same, either by home
stead or preempton entry. That at first
thought the entry could be SO cancelled
and wrote a letter to the register and
receiver at Boonyille to that effect, which
letter was signed by Hon. Willis Drum
mond, then commissioner, (Which letter
was preliminary to cancellation) but not
sent, but afterwards l found the case came
under the instructions of Commissioner
Wilson to me 70 patent cases haying no
valid interfering right, and that in per-
suance of these instructions the cancella-
ton was not perfected, but the case was
passed for patent, land that at the time re-
signed my position February 9th, 1872, the
case had not been entered or cancelled on
the tract books of the General Land Office
in Missouri" The original letter, of which
the witness here speaks, is dated March
25th, 1871, is addressed,to the register and,
receiver OF the Land Office at Boonville
Missouri. signed by Willis Drummond, the
then commissioner and directs the officers
to cancel the location of Widdicomb for the
reason that the land is out ol market and
not subject to scrip locations until re-
stored by at least thirty days public ad,
vertisement, under the 9th paragraph OF
the circular from this office, dated January
1st, 1885,"
The original letter, from which the
quotation is made, never was sent to the
Boonville Land Office, but copy clan.
destinely taken was produced there and
cancellation made on tract book OF the
Boonvile office on February 18th, 1872
stating that the tract had been cancelled
March 25th, ,2871-the date OF the commits
sioner's letter. Who copied the letter OF
the commissioners oi 25th March,
1871, and produced it at the Boonvllle
Land Office and how the register and
| receiver there came TO act on the copy