, 1882-07-28
PUGET SOUND ARGUS.
General Land Office Decisions
JAMES AIKEN


from becoming proCmptor
Nn entry Ot land tor cISh ur scrip gives
the party making 1t "a night To a patent,
If il bc found regular and valid. But
it does not pass the tltlcwhlch remains
in the United States until the patent
IS~uCS.
The proprictor,hip contemplated hy the
pre-emption act ~ a legal and alb
Solute one. and not the mere equity of
a land office entry, which may or may
not ripcn into such ownership.
DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
WASHINGTON. d. c., June II, 1882.
The Commissioner
Of the General Ldad ONicc,
SIR:-I have considered the appeal
If James Aiken from your decision OF
March 2, 1880, rejecting his applica-
ton for reinstatement OF his cash en-
try No. 3463, for the ), W. or, Of ).
Z, or, Sec. 2, and the n. W, pr. of \.
L. or. Sec, IL, Tp u S, r. Ii W,
Roscburg, Oregon.
1t appears that ON March 30, 1872,
Aiken filed declaratory statement for
the S. hf. Of S. f. Or, Sec. 2, and the
y. Inf. of n, L. or. Sec, II of said
township alleging settlement May ~,
1869; and that ON April l6, 1872, he
proved up and paid for the same,
1t also appears that G.. W. Pratt
filed declaratory statement April Il,
1872, for with other tracts the S. Il.
or. of s. T. or, Sec. 2, and the n. E.
or. of n. +. Or, Sec IL, being eighty
acres of the 100 acres embraced in
Aiken's filing. After contest between
Pratt and Aiken, respecting the tracts
in conflict, they were awarded to
Pratt, and he made cash entry there
for No. 1913, August 10, 1875, and
they have been patented to him.
Upon the same day your award of
january "A, 1874, in favor of Pratt,
having been affirmed by this Depart
ment ton appeaD Aiken's cash entry
as well for the tracts in conflict with
Pratt, as for those which We're not,
was cancelled because he was not Il
qualified pre-emptor at the date of
his filing, by reason of his ownership
of more than 320 acres, of land; and
his purchase money for all of the
tracts has been refunded to him,
This decision was based on the claim
that Aiken being owner in his own
right of 100 acres, part of Sec. 36,
Tp. 26, r. Ii W., in said land district,
ON June l, 1871, jointly with FIVE 9th
ers entered at the said land Office
Ccash entry No. 3O70) 1920 acres, and
the same day located with agricultu-
raj college scrip 20S0 other acres, and
ON February l. 1872, entered at the
same Office (cash entry No. 1859 1920
other acres making an aggregate of
1920 acres in which he was joint
owner of one undivided sixth part
AT the date of said decision af1idavits
we're on file to the effect that in all of
said joint transactions, Aiken was the
agent of the firm of Flushman & Co.,
who furnished all the money there
for; that said entries and location
were for the exclusive use and benefit
Of said firm, and that Aiken acted in
said matters as agent only, without
personal interest,
Since the date of said decision a
certified copy of a deed from James
Aiken to A. q. Aiken, dated February
10, 1872, has been filed, showing Il
conveyance to the latter of the undi
yided one-sixth part of the land en-
braced in said entries and location
for 7l20 acres and showing also
that at the date of his filing James
Aiken had no legal interest in said
lands.
1t also appears that one Ferry, to
whom Pratt had assigned the lands,
patented to him, recovered iudg
inent against James Aiken for pos
session of said lands; and that Aiken
brought suit in equity in the |. ).
District Court for the district of Or
cgon, to enjoin Ferry from forcing
the same; that the patent to Pratt be
held to inure to his own benefit, and
that Ferry be required to release to
MIN his interest i'll said lands.
In his decision of the case Judge
Deadly says: A person who owns
lands in trust for others, is not the
proprietor of such lands within the
prohibition of the pre-emption act,
and is not therefore Disqualified from
becoming pre-emptor, %' The
pre- emption act provides that mo
person who is the proprietor of 32O
acres of land shall acquire
right of pre-emptiou under this act"
This right OF pre- emption is not an
interest in the land. but only the
right to be preferred as purchaser
of certain portion Of the public
lands at the minimum price, irrespec
tive of its real value Myers vs.. Croft,
IL Wall, 296; 10 Epin, 5I4 4"
An entry Of land for cash or scrip
gives the party making it a right to II
patent. if it De found regular and
wand But it does not pass the title
which remains in the United state,