Fairhaven herald. [volume] (Fairhaven, Wash.) 1890-????, 1891-04-28
PUBLIC LANDS
Right of Alienation

! Geported for the HERALD by L. S. Ander-
son, attorney at law, 30 Butler block, Seat
| tie, Washington: Late principal examiner
of claims in the United States land office
| Washington, ID. O.
There are two important rules of law
affecting the right Of an entryman under
the public land laws to sell or cucumber
the land entered or sought to be entered.
| What l shall say will be mainly with
reference to lands acquired under the
homestead, presumption and timber land
! laws.
First. 1t is held that the entryman, If
he has in fact complied with the law, has
an undisputed right to sell the land at
any time after the payment OF the pur-
chase money or the land Office fees, as the
| case may be- and the issue of the final
certifca by the register Of the district
Office; but that prior to that time con-
| tract to sell nvaidates the entry and
renders it subject to cancellation.
| There is an exception to this rule in
section 2,2SS, Revised Statutes, providing
! for the sale of any portion of land settled
| by hOmesteaders or pre-emptOrs for
school, cemetery or church purposes or
/ for the right of way of railroads.
Second. 1t is held that mortgage is
| not sale under that rule and that the
settler is privileged to mortgage the land
settled upon to obtain the purchase money
his good faith, at any time, before or after
the issue of final certificate.
1t should here be stated that the de-
partment has for many years uniformalY
held that in case of any sale or incum-
brance, the grantee or mortgage should
, be admitted as party in any proceedings
looking the cancellation of the entry; but
i'm as much as he acquires no better title
than his grantor had, he should not be
? permitted to set up any matter of defense
not allowed to the original entryman.
The department in constituting the rule
= relative to sales has made some material
notifications, some of the most important
of which are here given.
In any case in which it can be shown
that at the time of the sale the entryman
had an equitable right to final certifi.
cate although it had not actually issued
such safe does not invalidate the entry
Thus where final proof and payment
] were wrOngfully rejected by the regisetl
( and receiver, and the land was transferred
before the issue Of a certificate, the entry
was held valid.
So it has been held that the sale of an
inconsiderable portion of the land, with
out fraudulent intent, would not invali'
] date the entry. II l.. ID. 453)
In the case of homestead where con
test proceedings to show the land to bC
mineral in character, were commenced
, after the entryman had furnished salts
b. but before final certificate issued, and
I pending the contest, the land was sold
, the department directed that a final GER
l tiicate be issued, as the basis for patent
: 1t was held that contract made prio
to entry or final proof by homesteader
to convey his claim after final proof
would not invaldate his entry, but tina
I the presumption of bad faith on his par
raised thereby might be rebutted by proc
I C l.. ID. 90.
. On the act of March 3, 1891, there is {
provision to the effect that all entrie
I made under the presumption, homestead
4 desert-land and timber culture laws II
which certificates have been issued and Z
which there are no adverse claim origi
6 mating prior to final entry and which hav'
been sold or encountered prior to March
1888, and after final entry to purchaser
e in good faith for valuable consideration
a shall be confirmed and patented on proc
of such sale or incumbraEce, unless frau'
b. on the part of the purchaser has beef
I found in an investigation by govern
, ment agent.
! But this provision is by its terms linn
tied to this particular class of cases, ant
does not otherwise affect the genera
principles governing the right to alienat
land acquired under these laws.