The Washburn leader. [volume] (Washburn, McLean County, N.D.) 1890-1986, 1906-06-15

his departure has contributed moth
ing towards their support. there
fore we again say that as against
him this contestant has made a
prima facie case and proved his
contentious or allegations of con-
test it being shown to the satisfac-
ton ofthis office that the abandon
ment Of the entry was not due to
the: entryman's employment in the
army, navy or marine corps OF the
u. S.
AS hereinbefore set out, Kath-
arina Fast. the wife of the entry
man at the time and place set for
the hearing appeared in her own
proper person, and by Attorney,
asking leave "to defend and retain
her Homestead right" to the lands
herein involved. While it may be
said that the instrument of inter-
vention' is not artistically drawn
yet it must be borne in mind that
but one construction thereof is per-
missable and while it is by no
means cher" homestead. and that
she can succeed thereto only by
virtue of her legal identity with or
to be the entry1nan. as his wife or
agent. So far as we know there
is no statute law, which recognizes
the status of a deserted wife, and
in the absence thereof we are con-
strained to hold that "even equity
cannot create a right which the
law denies" as the wife of the en-
tryman she has no rights, no legal
rights and having no legal rights
she can have no equities, that is
not in her own name. In Vance
VS.. Burbank 1O1 U. S. 514 the
Supreme Court enunciated a doc
trine inter ALA in the following
language:
"The settler is made by Statute the ac-
tor in securing the grant. When this is
grant, his wife takes her share in her
makes the claim. His acts affecting
her abandonment; his neglect, her neg
1 lnnk Tho I Ond nanOrfv,nnt until I'm
final proofs are made, knows only the
husband. If contest arise, he is the party
to be notified. He represents the claim,
and whatever binds him binds all inter
ested through him in the question to be
decided"
It is immaterial that this doc
trine arose from an action in "equ-,
ity" under the Oregon Donation
Act, because it is directly and
equally applicable to the case at
bar.
Since the enunciation and pro-
mitigation of the Supreme Courts
Decision, supra, the Department,
on January goth 1884, formulated
certain rules the first of which pro-
vides that:
"When the entryman has established a
residence and placed his wife upon the
land, no one but his wife shall be heard
to allege the desertion, in proof of his
change of residence or abandonment,
during the seven years from date of the
entry, provided that she maintains a res
idence on the land"
While it is true that the contest
ant herein, through his counsel op-
posed and resisted Katharine
Fast's participation in this contest,
it is clear to our mind that he seeks
to deprive this poor unfortunate
woman of her only home. The
record shows, even the testimony
of the witnesses introduced bythis
contestant is to that effect, that the
County of Mclean, wherein the
lands in question are situated, sup
ports and maintains this destitute
woman and her five living children.
That ever since her husband placed
her on this land she has lived
there. That she has been compel
led to demolish the barn to obtain
fuel wherewith to warm and heat
her house on this land and pre-
vent her from freezing to death
during the rigid winter months pre-
vailing in this country.
Much stress is laid upon the
fact that this entrywoman is in
touch with her husband, that she
knows his whereabouts and that
she has written him for the pur-
pose Of securing from him a relin-
quishment of his entry for sale or
barter. That she has offered such
a REIMBURSEMENT. This we find is
not sustained blythe record. While
Katharine Fast admits that she had
heard through. others that her hus-
band was somewhere in the State
of Washington, that she was ap-