, 1882-06-30
General Land Ct,ca Decisions,


u,urv j. required ut % prrrmuior>' IN tue
absence ol adverse claims the lIl''7 III
this case are hrll Ia have urtcd 'h -"'"
lItth md their entries WI. ~itlI
DEPARTMENT or THE INTERIOR,
OFFICE or THE SECRETARY,
WASHINGTON. y. c., April l3, lN~2.
The CunlHi HiSSiOncr If tue GrHcrW L'"d
Cgirr:
SIR. | have considered the appeals of
Alexander Blair, John Roach aud Jos
,nh y. Austin, respectively, from your
decision of June IL, lSNl, holding for
cancellation their respective cash entries
al within the Harrison, Arkansas, land
district.
IT appears that the parties each filed Il
pre.emptiOn dcclaratory statement upon
tue land named on June II, each alleg-
ing settlement on June Ii, 1879, and that
each made cash entry therefor on Au-
gust Is, 1879, upon proof substantially
the same iii each case (they being wit
ucSses for each other, of the erection of
Il house, the setting ont of few trees,
and the clearing of about one acre Cul-
tivated az garden all valued lii each
case at about $40. They each subse-
quently conveyed the tract named in
their entry to one Massman Blair and
Austin on August DIST, and Roach on
August %, 1879: and on October ID fol-
lowing, MasSman conveyed the same to
her son, Louis Haucke.
In April 1881 before knowledge of
said conveyances was received at your Of
flee, you found the proof OF residence on
the respective tracts insufficient in each
case. and allowed the parties to show
continuous residence thereon for six
months; but they appear to have aban
dOned the land upon their conveyance
thereof, and have made no further resi-
dence thereon,
Your decision finds that their brief
residence, their limited improvements
and the immediate transfers OF the lands,
show that their entries We're made for
speculative purposes, not in good faith,
and in the interest of their grantee,
and hence were enormously allowed.
Sec. 2263 II. S, requires that prior to en-
tries under section 2259 proof OF Settie-
ment and improvement shall he made to
the satisfaction of the Register and Re
ceiyer of the district within which the
land lies, agreeably to such rules as may
be prescribed by the Secretary of the In
terror: the statute is silent III respect to
residence for any prescribed period.
Pre-emptors are required to take no.
tice of the public laws relating to pre-
emption entries, but not, think, of the
rules Of your office, except when the same
are brought to their special notice, ell
ther by personal communication or pub
lie promulgation, The latter are pro-
mulgated through the local officers; and
il they neglect to make known such rules
or enormously advise pre-emptors in re-
spect thereto, and the pro-emptor, acting
on such advise, pays his money to the
government for the land in good faith
especially il there is no adverse party
h should not be held for any failure to
comply with the rule, because the fault
is with the officer and not with the party
The rule of your Office requiring six
months residence on tract of public
land, as an evidence of good faith, prior
TO entry, is (as held in the case Of Con-
lin vs. Yarwood, Copp's Land Owner,
November, 1880, wise and proper as
general rule, but not to be applied indis-
eriminately nor when the good faith 9TH
crwise sufficiently appears.
In their supplementary aflidavits Blair,
Roach and Austin seyerally swear that
they were advised by the local officers
aU the date of the entries, that their
proofs were sufficient; and the officers
corroborate the same, stating that, at
tha.t time there were no instructions in
their office relative to the required time
of residence by pre-emptor, prior to en-
trv, and that they had followed the prac-
in
who had held such proof immeterial.
After entry, the pre-emptors had the
right to convey such title as they had
Myers VS. Croft, l3 Wall. 29l). That the
sales indicated bad faith, and that their
entries were for speculative purposes, is
inferential only from the above stated
facts; and this, in my Judgment, is con-
trolled by the atiidavits of the parties,
aad their grantee, that the sales were
made in good faith, for valuable con-
sideratioA, and under the supposition
that such sales were permitted under the
law,
While the proofs as to settlement, i'm
proyement and residence are not wholly
Satisfactory to this department, yet as
they were 10 the local officers, and as the
parties have paid to the government its
price for the land, and since their ap-
peal, upon the requirement Of the De-
partment, have filed las have also Mass
man and the said Haucke) aftidayits to
the effect that, prior to their respective
entries, no contract or agreement. ex-
pressed. or implied, was made by either of
Of the parties for the sale. or transfer of
said land, the evidence of want OF good
faith is not sufficient in my opinion to
warrant a cancellation OF the entries in
tbp absence Of an adverse Slain,
Your decision is reversed,
), J.. KIRKwoop, Secretary.