The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1890-04-26
SOLDIERS ADDITIONAL SCRIP.
A Question of Titles and q Recent Dec
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A Question Of Titles and Recent Deci-
sion in Point.
To The IxDEpENDENT:-The security Of
titles to public lands acquired by the loca-
ton of what is known as soldiers additional
scrip is matter of very general interest,
and has lately attracted the attention OF
many Helena property holders.
March 10Th, 1880, Secretary Noble rem
dered his decision upon the motion of John
d. Walker ct al, for review of the decision
of Secretary Villas, rendered December oath,
1888. The syllabus of his decision is as fol-
lows:
SOldiers' Additional Homestead. - The
right to make soldiers additional homestead
entry is not assignable, but is personal
right which can be exercised only by the
soldier or in case of his death, by his widow,
If unmarried. or if she be dead or married,
by the guardian of his minor children.
Certifcation.-A certificate. OF the SOL
dier,s additional right will not be issued fol-
the benefit OF one claiming under an assign
ment of the soldiers interest therein. The
circular of February Ii, 1888. does not au-
thorize the issuance of a certificate for the
benefit of such assignee.
The exercise, in person, of the soldiers
additional right, pending final disposition
of an application for the certifcation of
such right, precludes further action on said
application.
The following from the decision itself
(which most emphatically affirms that OF
ent insecurity Of titles held by virtue Of
such locations, made otherwise than BY
the soldier himself or his statutory repre-.
tatives.
The soldiers homestead act, even though
II be considered separately and apart from
the provisions of the general homestead
law. must, of itself, be construed as q
whole, IN order to ascertain the real intent
of congress relative to its several provisions.
BY thus constituting the act, it is clear to my
mind that congress did not intend the priv
ilege, granted to the soldier by the second
section thereof, should be made the subject
of barter and sale, or of assignment to
conferred is strictly personal right. 1t is
go because it depends, not only upon
the existence of the soldier, but upon
his personal qualifications to make the
entry. 1t is not, in itself, properly speak
ing, right of property, but is mere
certain way and upon given state Of facts
which without the right thus given could
not be 80 acquired. II is, under the stat
ute, essentially personal right, which be-
comes or ripens into right of property
only when it is exercised by the soldier
through his personal entry of specific
tract Of public land. It is not such q right
as by the natural law of descents can de-
soend to the heir. but is mere persona
right which lapses or becomes extinct upor
the death of the party upon whose person
atty it depends. Nor can it be made thu
subject of devise or bequest by will. There
is nothing in the mere right, unexercised
statute, or that can be devised or be
QueRthed.
When, however, patents have issued upon
such illegal locations, and the lands have
passed into the hands of innocent purchas-
ers, the insecurity of the title of such pres
In recent case, however, patent has IS
sued upon such location OF soldiers ad.
ditional scrip, and that. too, with most
singular expedition. and in spite of the
VIGOROUSLY mineral character of the tract
lying less than two miles from the cour
house, and my clients, the mineral claim
ants, supposed themselves hopelessly de-
frauded of their rights. December II, 1899
l filed in the general land Office application
to set aside the patent so illegally issued
and OH January 4, 1880, the honorable com.
missioner recommended to Secretary Noble
the institution of the suit as prayed for
January IL the secretary forwarded to the
department Of justice the commissioner
recommendation with his special endorse
ment, and the papers were in the hands OF
the United States district attorney here, as
soon as he had qualified.
A bill in equity has been prepared in
which the attorney general sets out the lille
gality of the patent as issued and asks that
it be set aside and Cancelled. do not be-
lieve that an application to cancel patent
was ever before granted in so short a time.
The fact is that to-day there are no more
uncertain titles to public lands than such
as rest upon the location of soldiers addi-
tional scrip. Respectfully,
A, III. NELSON.