soldier, by his surviving adult heirs. Your action, rejecting the application, is approved, of which you will advise the party in interest, allowing the usual time for appeal.

The question to be determined in this case is, whether upon the death of Philip Mulnix shortly after the filing of his declaratory statement and prior to entry, there was cast upon his heirs the right to complete the homestead entry he had so initiated, and thus be afforded opportunity to secure title to the tract in question. Section 2307 of the Revised Statutes, upon which your said decision appears to have been based, applies only where one who is entitled to a homestead under the provisions of section 2304 of the Revised Statutes dies without having exercised said right. The Department, however, has uniformly and very frequently held that the filing of a soldiers' declaratory statement exhausts the homestead right. Circular of December 15, 1882 (1 L. D., 648): Maria C. Arter (7 L. D., 136): Truman Wheeler (19 L. D., 60). Even though an agent to whom he entrusts the matter should select a worthless tract, the person filing such declaratory statement is bound thereby and disqualified to exercise the homestead right on another tract. John Benham (19 L. D., 274).

Congress has seen fit to grant to certain persons because of military or naval service the special or additional privilege of selecting land and holding it for a period not exceeding six months before making actual entry thereof, upon the filing of a soldiers' declaratory statement for the same. In this way the land is held for the declarant. and his rights, if entry be made at any time within the six months' period, relate back to the date of filing. One entitled to this additional privilege, however, as hereinbefore stated, is held to have exhausted his homestead right by the filing of the declaratory statement. He can make but one such filing, and can not thereafter abandon such selection and make another homestead entry. It logically follows therefore that by such filing a homestead claim is initiated, which, upon the death of the soldier prior to completion of entry, not leaving a widow, is cast upon his heirs, who may do any and all things necessary to its completion under the provisions of section 2291 of the Revised Statutes, in the same manner and upon the same basis as the heirs of an ordinary homesteader who dies before the consummation of his claim.

The following from the circular of the General Land Office, issued January 25, 1904 (page 23), would seem clearly to indicate that such a filing, upon the death of the declarant, could be completed by his widow, or upon certain conditions by the guardian of his minor children:

The widow or, in case of her death or remarriage, the guardian of minor children, may complete a filing made by the soldier or sailor as above, and patent will issue accordingly.

This paragraph has been contained in the several General Land Office circulars issued since January 1, 1889, and while the Department does not appear to have enunciated this principle in any of the reported decisions, neither does there appear to have been rendered any contra holding. If the widow or guardian of minor children. may complete such filing, it does not appear that it can be based on any other authority than section 2291 of the Revised Statutes, which makes no distinction whatever between minor and adult children. In fact, it would seem that the paragraph might very properly and more correctly have stated, in substance, that upon the death of a declarant within six months after the date of filing his soldiers' declaratory statement without having perfected his entry, his widow, or, in case of her death, his heirs, may complete the homestead entry thus initiated upon the filing of proper application prior to the expiration of the six months' period.

Hence, it clearly follows that the filing of a soldiers' declaratory statement is the initiation of a homestead, and that its perfection is governed by the provisions of section 2291 and not by section 2307 of the Revised Statutes. In this connection see Bernier v. Bernier (147) U. S., 242).

The duly corroborated application of appellant herein as heir of and on behalf of the heirs of Philip Mulnix, deceased, appears to have been properly presented prior to the expiration of the period within which the declarant, if then living, could have made entry therefor, and the Department directs that in the absence of other objection the same be allowed.

The decision of your office is accordingly reversed.

FOREST RESERVE-LIEU SELECTION-DEED AND ABSTRACT-ACT OF JUNE 4, 1897.

WILLIAM E. MOSES.

Upon the final rejection of an application to make lieu selection under the provisions of the act of June 4, 1897, on account of defective title to the base tendered, the applicant is entitled to have returned to him the deed of relinquishment and abstract of title to the base lands submitted in support of his application.

Secretary Hitchcock to the Commissioner of the General Land Office, (S. V. P.) November 25, 1904. (J. R. W.) William E. Moses appealed from your office decision of July 8, 1904, rejecting his application for return to him of his deed purporting to relinquish to the United States the legal title to the SW. 1, W. ¿ SE. 4, Sec. 2, and the S. SE. 4, Sec. 3, T. 8 S., R. 71 W., 6th P. M.. in the South Platte forest reserve, tendered under the act of June 4, 1897 (30 Stat., 36), as base for his application thereunder, number 3691, your office series, to select lands in lieu thereof at Lewiston, Idaho.

Moses's application to make selection was finally rejected, May 21, 1904, for defect of title to the land. William E. Moses (32 L. D., 642). He then applied for return to him of his deed and abstract of title, which your office refused:

1st. Because they are essential to the record as showing the facts upon which the action of this office in rejecting the selection is based; they comprise the evidence in the case.

2nd. That such papers, held to be insufficient, may not in the same form be again tendered as basis for another selection. When the selector has done all that is required by the regulations and the evidence of title to the base land is sufficient, but the selection can not be allowed because the land applied for is for any reason not subject to such selection in such case, there appears to be no sufficient reason why the deed of relinquishment and abstract of title may not be returned to the selector, and this contingency does not exist in the present case, and your request must accordingly be denied.

The posession of a deed by one of the parties thereto is an important fact in controversies relative to titles to land. Possession by the grantor is presumptive evidence that the deed was never delivered to. or was never accepted by the grantee, and so never took effect as a transfer of title. Byars . Spencer (101 Ill., 429; 40 Am. Dec., 212). Possession by the grantee is presumptive proof of the delivery and acceptance of the deed and that title passed to the grantee. Games v. Stiles (14 Pet., 322, 327); Sicard v. Davis (6 Pet., 124, 137). The deed is thus a muniment of the grantor's own title-evidence that title has not passed from him so long as he has possession of it, and is muniment of the grantee's title when in his possession. The owner of land is entitled to possession of his muniments of title.

Equitable title to land relinquished to the United States under the exchange provisions of the act of June 4, 1897, does not vest until examination and acceptance of the title by an authorized officer of the United States. In Cosmos Exploration Company . Gray Eagle Oil Company (190 U. S., 301, 312), the court held that:

There must be a decision made somewhere regarding the rights asserted by the selector of land under the act, before a complete equitable title to the land can exist. The mere filing of papers cannot create such title. The application must comply with and conform to the statute, and the selector cannot decide the question for himself. . . . . [313] It is certain, as we have already remarked, there must be some decision upon that question before any equitable title can be claimed-some decision by an officer authorized to make it.

It is a transaction of exchange and it is a necessary condition of title by exchange that there is "a concurrent vestiture of title" to the things exchanged. The New Madrid Act (3 Stat., 211) provided for exchange of private for public lands, and the court held in Lessieur v. Price (12 How., 59, 74) that such vestiture of title occurred when "the United States assented to the exchange and not until then."

The deed having been delivered to officers of the United States for their inspection and acceptance and being found not acceptable, the

United States has no claim to the land nor right to possesion of the deed. The transaction, of which the conditional delivery was a part, having wholly failed, the deed never became operative, and the grantor is entitled to its return that the grantee may be divested of the presumptive evidence of ownership. Devlin on Deeds, Sec. 271; Graves. Dudley (20 N. Y., 77); Ford v. James (2 Abb., N. Y. App., 159); Freeland ». Charnley (80 Ind., 132).

The principle involved is no new doctrine. Where the relinquishment of an entry was made as part of the transaction of claim for reimbursement, it was held erroneous to deny reinstatement of the entry on the refusal of repayment, or to accept and enter the relinquishment of record. J. Harvey Allen, November 3, 1903 (unreported). The relinquishment of an entry made as part of a transaction of exchange under the act of June 4, 1897, is effective only when the proposed exchange is allowed, and if prematurely entered of record, the entry must be reinstated. Mary Stanton (32 L. D., 260). The controlling principle is that when such proposed transaction fails, the proponent must, as far as possible, be restored to the status quo of the time when the transaction originated.

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Your office decision is reversed, and the original deed and abstract will be returned to the applicant. If necessary, in opinion of your office, to preservation of its records, copies may be made and retained.

HOMESTEAD ENTRY-MARRIED WOMAN-RESIDENCE,

ANDERSON . HILLERUD.

Where a woman, having an unperfected homestead entry, marries a man having a similar entry, and thereupon abandons her claim and resides with her husband upon his claim until he offers final proof thereon, and they then establish residence upon her claim, long prior to the initiation of a contest against the same, she thereby cures her default in the matter of residence and is entitled to perfect her entry.

Acting Secretary Ryan to the Commissioner of the General Land (S. V.P.) Office, November 26, 1904. (J. L. McC).

The Department is in receipt of your office letter of August 16, 1904, transmitting the record in the case of Edward S. Anderson . Aasine Hillerud, nee Aasine Myhro, involving the homestead entry of the latter for certain land in the Devils Lake land district, North Dakota. The facts of the case are set forth in the following agreed statement. filed with the local officers by the parties in the case:

That Halgrim K. Hillerud made homestead entry No. 5722, December 18, 1893, for the E. of the SE. 4 of Sec. 33, and the W. of the SW. 4 of Sec. 34, T. 151, R. 68, and established residence thereon immediately after filing. That Aasine Myhro made homestead entry No. 8899, April 22, 1879, for the S. of the NE. and the E. of the SE. of Sec. 30, T. 151, R. 68. That April 26, 1897,

the said Aasine Myhro and the said Halgrim K. Hillerud were married, and ever since said time have lived together, and now are, as husband and wife. That on June 23, 1898, Halgrim K. Hillerud made final proof of said homestead entry No. 5722, upon which was issued final certificate 2437. That immediately after making said proof said Halgrim K. Hillerud and said wife Aasine Hillerud (formerly Aasine Myhro) moved upon the claim in controversy. That ever since said time they have resided continuously upon said premises up to the present time, with their family of two children. That during said time Aasine Hillerud (formerly Aasine Myhro) and said husband have placed upon said premises a two-story frame dwelling-house 24 by 14, plastered and furnished the same, and other buildings and improvements. . . . That said improvements are reasonably worth from $1,500 to $2,000. That said parties have continuously made the claim in dispute their residence and cultivated the same since June 23, 1898, more than four years prior to the commencement of this contest.

...

Upon the preceding agreed statement of facts, the local officers held that "the parties have elected which of the two claims they will maintain by the husband making final proof of his entry," and recommended that the entry under contest be canceled.

From this decision the defendant appealed to your office, which, on March 31, 1904, reversed said decision and dismissed the contest. The contestant has appealed to the Department.

The local officers based their action upon the departmental decision in the case of Jane Mann (18 L. D., 116), from the syllabus of which they quote:

Where a woman, having an unperfected homestead entry, marries a man having a similar claim, the parties should elect which of the two claims they will maintain, as both entries can not be carried to patent,

The decision of your office is based upon the departmental decision in the case of Katie Williams (formerly Katie Kusha), rendered November 7, 1903, but not reported, which is, in its essential features, similar to that here under consideration. Katie Kusha's entry was made November 24, 1899. On December 23, 1899, she was married to Ervin T. Williams, who then had an unperfected homestead entry upon which he was residing. His wife took up her residence with him there, and they continued to reside there until he offered final proof in support of his entry. His five years' term of residence expired two months and two days after his marriage to Miss Kusha. After making his final proof he and his wife took up their residence upon the land embraced in her entry, and continued to reside thereon thereafter. When she submitted her final commutation proof the local officers rejected the same. She appealed to your office, which affirmed the action of the local officers, and held her entry for cancellation. She appealed to the Department. Upon careful and exhaustive consideration of the facts and the laws, the Department reversed the action of your office, holding as follows:

The law does not prohibit a husband and wife from each owning a homestead; but they can not earn separate homesteads by residence on two tracts at the