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can not take the present land applied for as an amendment to his additional entry, there seems to be no reason why he should not be permitted to relinquish his additional entry and make a new entry under the act of May 22, 1902, for the land embraced therein, together with the tract now applied for.

You are therefore directed to cause Bowdon to be notified that he will be allowed thirty days from notice hereof in which to make such entry in accordance with the above conditions.

Your said decision is modified accordingly.

MINTON . BYERS.

Motion for review of departmental decision of March 21, 1903, 32 L. D.. 71, denied by Acting Secretary Ryan, May 16, 1903.

NEW MEXICO-LEASING OF SCHOOL LANDS.

KLASNER. LUMBLEY.

The question of leasing school lands in the Territory of New Mexico under territorial laws is one exclusively for the consideration of the Board of Public Lands of said Territory.

Secretary Hitchcock to the Commissioner of the General Land Office, (S. V. P.)

May 28, 1903.

(G. B. G.)

This is a petition filed on behalf of Mrs. Lillie C. Klasner, asking that you be instructed to forward the papers on file in your office in the matter of her proffered appeal to the Department, from the action of the Board of Public Lands of the Territory of New Mexico, awarding a lease of Sec. 16, T. 11 S., R. 18 E., in said Territory, to one William H. Lumbley.

It appears from the petition that this land was first leased to Lumbley by the Board of Public Lands, October 23, 1899, and that this lease was approved by the Secretary of the Interior. January 12, 1900, In the meantime, however, the Board had leased the same land to Mrs. Klasner, which lease, together with a recommendation by the Board that the lease to Lumbley be canceled, was forwarded for consideration under section 10 of the act of June 21, 1898 (30 Stat., 484). Before the lease to Mrs. Klasner had been submitted to the Secretary of the Interior for his action, your office addressed a communication to the Department calling attention to an act of the territorial legislature of New Mexico, of March 16, 1899, which provided that all lands to be leased in that Territory should first be appraised by the board," and to a subsequent act of said legislative assembly, approved March 20,

1901, repealing so much of the act of March 16, 1899, as provided for appraisal.

In response to the request of your office for a ruling upon the question of the effect of these statutes, the Department January 3. 1902 (31 L. D., 188, 190), referring to an opinion rendered by the Assistant Attorney-General for this Department, June 5, 1900 (15 Assistant Attorneys-General's Opinions, 234), held that the appraisal of the lands to be leased was, under the act of March 16, 1899, supra, a necessary prerequisit to such leasing and to the approval of the lease by the Secretary of the Interior, and that, "if these lands were not appraised before the leases were executed, then the leases were invalid from the beginning, and the repeal of the law in force at the date of the execution of the leases would not make them valid."

It results that both the lease to Lumbley and Mrs. Klasner, above referred to, were invalid. It further appears, however, that these parties had filed affidavits before the Board in support of their respective claims to lease the tract under certain provisions of the territorial laws, and that the Board, acting on this showing, and presumably upon a report made to it in the matter by the Commissioner of Public Lands who had been instructed to make a personal investigation in regard to the conflicting claims of the parties, awarded the tract to Lumbley and reinstated his lease. It is from this action that Mrs. Klasner attempted to appeal, and this appeal which your office, upon the authority of a decision of this Department in the case of the Lyons and Campbell Ranch and Cattle Co. v. Stockton (31 L. D., 341), refused to forward. In that case a lease had been made to one Thomas Lyons and approved by the Secretary of the Interior. It afterwards. appearing, however, to the satisfaction of the Board of Public Lands that the lease had been obtained by fraudulent representations on the part of Lyons, the Board, after due notice to him, canceled the lease and executed a lease of the same land to Stockton. The cattle company protested against this action, and in considering the matter upon this protest it was held that the sufficiency of the evidence upon which the action of the Board was taken was not a question for review by this Department.

The Department is of opinion that the question of leasing these lands under territorial laws is one exclusively for the consideration of the Board of Public Lands of the Territory. Should any action which they might take conflict with a federal statute, it would be the duty of the Secretary of the Interior, in the exercise of the authority conferred upon him by the 10th section of the act of 1898, to withhold his approval. But the law does not contemplate that the Secretary of the Interior shall interfere in controversies between citizens of the Territory before the Board of Public Lands, respecting the leasing of lands under territorial laws.

The jurisdiction of the duly constituted Board for the leasing of these lands over questions of this character is exclusive. Any question of irregularity in the execution of the lease to Lumbley will be considered upon its submission for my approval.

The petition is denied.

HOMESTEAD-RELINQUISHMENT-SECTION

2290, REVISED STATUTES.

STUBENDORDt ». CarpenTER.

A contract to sell the relinquishment of a homestead entry is not in violation of the oath required of a homestead applicant by section 2290 of the Revised Statutes as amended by the act of March 3, 1891, and is no ground for cancellation of the entry if good faith on the part of the entryman at the time of making his entry is apparent.

Secretary Hitchcock to the Commissioner of the General Land Office, (S. V. P.) May 28, 1903.

(A. S. T.) On February 20, 1899, Ira B. Carpenter made homestead entry for lots 3 and 4 and the E. of the SW. of Sec. 30, T. 21 N., R. 1 E., Guthrie land district, Oklahoma.

On August 3, 1900, M. Stubendordt filed an affidavit of contest against said entry, charging failure to reside on the land as required by law. Notice issued fixing September 20, 1900, as the day for a hearing before the local officers. The notice was served on the defendant on August 3, 1900.

On October 8, 1900, the contestant filed an amended affidavit charging that the said entry was not made honestly and in good faith for the purpose of actual settlement and cultivation, and was not made for the purpose of obtaining a home, by the said entryman, but that the said entry was made by the said Carpenter for the purpose of speculation and for the purpose of selling his relinquishment of said entry.

The case was continued from time to time by stipulation of the parties, till November 19, 1901, when the hearing was commenced before the local officers, both parties being present. A large volume of testimony was taken, and the hearing closed in April, 1902. The principal portion of the testimony relates to the question of the defendant's residence on the land, but there is also evidence showing that the defendant, after making the entry, entered into a contract whereby he agreed to sell all his interest in the land to B. F. Lathrop for two thousand dollars, one hundred dollars of which was paid to him and the remainder was to be paid on or before November 1, 1900.

The local officers rendered dissenting opinions- the register finding in favor of the defendant both on the question of residence on the land and as to the speculative character of the entry, while the receiver found in favor of the contestant on both questions. Both parties appealed to your office, where on February 18, 1902, a decision was

rendered wherein it was found that the charge of failure to reside on the land was not sustained by the proof, but it was also found that the defendant had made the contract to sell the land above referred to, and for that reason his entry was held for cancellation, and from that decision he has appealed to this Department.

It is insisted in behalf of the defendant that inasmuch as the contestant has not appealed from your said decision, which was adverse to him on the question of the defendant's residence on the land, your decision on that question has become final, and that therefore the only question to be determined by this Department is, whether or not the defendant by making the contract referred to above forfeited his entry.

The defendant's appeal from your office decision brings the whole case before this Department for consideration upon the entire record, involving both questions, and the record has been carefully examined, and it is found that your said decision on the question of the defendant's residence on the land is fully sustained by the proof, the material portions of which are correctly stated in your decision and need not be recited here, and your said decision on that question is affirmed.

The charge in the amended affidavit of contest is, that the entry was not made in good faith for the purpose of acquiring a home for the defendant, but for speculative purposes, and for the purpose of selling his relinquishment thereof. It is not charged in the affidavit that the defendant had contracted to sell his relinquishment, but evidence of such contract was properly admitted as bearing upon the charge that the entry was made for speculative purposes.

The proof shows that the defendant, on February 20, 1899, purchased the improvements and relinquishment of a former entryman for eight hundred dollars, and on the same day made entry for the land. In June, 1899, he erected a small house on the land and established his residence therein, with his family, and immediately began the erection of a much larger and more commodious house, which was completed in about two months; this was a frame house, made of the best quality of material he could obtain; it was painted, and when it was finished he placed in it about four hundred and fifty dollars worth of first-class furniture, and moved into it: the floors were carpeted and the house was neatly and comfortably furnished.

One of contestant's witnesses testified that the defendant said to him, about the time he was building the house, that it would make the place sell better, and that he defendant said he would not give a snap only for speculation; never made anything only in speculation; talking about land he bought back in the east, and that he made more speculating on lands than anything else." While this testimony may be construed as tending to show his purpose in making the entry, it is offset by the testimony of other witnesses, who say that in selecting his materials for the house the defendant said he wanted the best he

could get, because he was building the house for a home; it is also offset by the amount and quality of furniture he placed in the house, which tend to show that his purpose was to make his home there.

Several letters written by the defendant to B. F. Lathrop, from January 12, 1900, to July 26, 1900, were filed as evidence by the contestant. These letters were evidently written with the view of inducing Lathrop to purchase the land, or whatever interest the defendant had in it, and although the defendant claims that a portion of the letters refers to a different tract of land, it is believed from all the circumstances that they all refer to the land in controversy. The defendant admits that he wrote the letters, and he also admits that they contain misrepresentations as to the crops grown on the land, and that he purposely misrepresented the facts in order to induce Lathrop to buy the land.

It seems that at some time prior to July 6, 1900, or on that day, they reached an agreement whereby the defendant sold to Lathrop all his interest in the land. This is evidenced by the following instrument, a copy of which is in the record, and which is admitted by the defendant to be correct:

PERRY, Oklahoma, July 6.

This is to certify that I have this day contracted to sell to B. F. Lathrop all my interest, right and title to the following described land . .

[describing the

tract in question]; the said B. F. Lathrop to pay to the said Ira Carpenter $2000; the receipt of $100 is hereby acknowledged; the remaining $1900 is to be paid on or before November 1, 1900; and the said Ira Carpenter reserves the crops on said farm, except the hay.

IRA CARPENTER.

The contestant calls this instrument a contract, while the defendant insists that it is not a contract, but merely a receipt for $100.

While the instrument is not, strictly speaking, a contract, because it is only signed by one of the parties, it is nevertheless an admission by the defendant, who did sign it, that such a contract as described therein had been made.

It is insisted in behalf of the contestant that the defendant by entering into the contract described in said instrument forfeited his entry, and that view seems to have been adopted by your office, for it was not found that the entry was made for speculative purposes, but your office held that, "the entryman by making the contract hereinbefore quoted has violated his contract made with the government when he made the entry," and hence you held his entry for cancellation.

Section 2290 of the Revised Statutes, as amended by the act of March 3, 1891 (26 Stat., 1098), requires the applicant for a homestead entry to make and file an affidavit which shall state, among other things

that he or she does not apply to enter the same for the purpose of speculation, but in good faith to obtain a home for himself or herself, and that he, or she, has not directly or indirectly made, and will not make, any agreement or contract in any

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