The state journal., 1878-04-26
toned in the act of congress, that the
lands should have been offered at public |


exercises over the disposition OF the public
domain and the reasonabeness OF the
rule, as well as the long recognition
OF the same by the department. |
am not prepared to say that the
rule is an improper exercise OF power
on part OF the commissioner. The ques-
tion remains, is the rule cited applicable
to the case. 1t will be observed that there
is no evidence that the land had been re-
served or Withdrawn. so rs to bring it with
in the rule established by the act Of Cou.
| gress alter the Offering it at public sale
under the proclamation OF the President.
| nor is there testimony even tending to
show that the lard in controversy had
been withheld from private entry for aHy
causes specified in the rule, or any other
cause.
The fact that the department officers
speak oil it as falling within the rule may
either be because of facts known to them
not presented to this court, or because
Childs the clerk, who wrote the cancellation
letter and had the commissioner to sign il,
and who brought it within the rule, because
q department clerk with himself desired
to enter it by homestead or preemption,
and whose iather,' alter cancellation, did
enter it. | have carefully looked
through the testimony, in order to find
evidence OF the applicability Of the rule
to the case, Tor from after cOnveyanceS
and internal evidence, | have my doubts
as to the bona tides OF the action of the Of
ficers at the Boonville Office in permitting
the location. Ihe doubt arises from the
fact that Boardmln, the BoOaville Reg
ister ut the time OF Wildicomb's location,
according to his own testimony, lai
doubts as to the applicability of the rle
to the case, and rather excuses his &C. N
in this and similar cases, by saying I,.G
he thought the rule oppressive and p.Ho.
tically of no benefit to the goyernme II
adding that it was done with the kno l.
edge OF the department. With the h.,t
light have before me and with feel {
OF opposition to make successful an art-
which does not come up to that stanGa
of official integrity which should preyail,
L must hold that the department rue
cannot properly be made TO apply to the
Widdicom5 location, and that the can
collation. OF the patent was without al
thorty of law.
Holding then the Widdicomb patent to be
valid Notwithstanding the cancellation OF it
it remains to be seen whether plaintiff has
made out his title by proper conveyances
to himself from Widdicomb, grantee in
the patent. Two objections are made to
conveyances III plaintiff s chair. OF title,
namely: To the deeds of Mrs. Boardm an
to Lamont, and from the same grantor to
Margaret Mcmillan. The objections are
that the acllnowedg dgement OF Mrs. Board
man was taken at different time-place,
and by different oflicer-trom the one
who took the acknow iedgement OF her
husband The land conveyed belonged
to Mrs. Boal9man, and she and her hu
band sign and acknowledge the same
deed. Stress is laid upon the wording
OF the Missouri statute, regarding ac-
acknowledgements, which reads: "And no
acKnoWl Judgement or a married woman
shall. be taken, unless she shall first be
made acquainted with the contents of such
instrument, and shall acknowledge, on an
examination apart from her husband, that
she executed the same freely and without
compulsiOn, or undue influence OF her
lspand." 1t is argued that the meaning
and intent OF the statute is, that husband
and wife shall be present together, before
the same officer, and that the separate
examination sh II then take place, ,and it is
usually done so. But is a deed, otherwise
sufficient, void, if acknowledged, as in the
| present case? In the reported Missouri
cases no parallel case is found, and hav-
| in to eXpound the statute without aid
| from the source referred to. am inclined
to hold the acknowledgement sufficient.
| This inclination is strengthened by the
iact that defendant claims under an indie
pendent title, in no way connected with
this. There are Missouri cases pointing
10 the distinction here alluded to--46 Mo,
Bishop VS.. Schneider, 472, and later
case affirming it.
The objection to the power of attorney
being taken before consular agent; an
examination of the U. S. Statutes will
show the following to be the state of the
law as applicable to the matter under
consideration. Under the title, "Diplo-
matte and Consular Oflicers,' section 1874
provides "the official designations en-
| ployed throughout this title, shall be
deemed to have the following meanings
respectively: First: Consul General"
Consul" and Commercial Agent" shall
be deemed to denote full, principal, and
permanent consular officers as distin-
guished from subordinates and subSti-
tutes. Second: deputy Consul" and
"Consular Agent shall be deemed to de-
note consular officers subordinate to such
principals exercising the powers and
performing the duties within the limits OF
their consulates or commercial agencies.
respectively, the former deputy consuls)
at the same ports or places, and the latter
Consular agents)at ports or places differ
ent from those at which such principals