,UNITED, mATES'/); PERRY.
ent recites that the land had been purchased and paid for under the act of April 24, 1820,-the gerteral:8tatute of the United States providing for the sale of public 1.:1nqer the direction of the president, -and a person who would examine the 'Patent itsalf would not' be l\pprised from it that the question of whether the land was agricultural or timber land had anything fu" do with the title. , ", ,,For' these the, defendants' are to a decree dismissing the bill. ' , ' ,
UNITlCD, STA,'tEs· 11. PERRyet
D.WaBMnl1ton., April 7.1891.) ,
A homestead' patent issued under Rev. St. U. 8. § 2291, will be canceled in" direct proceeding against the original patentees for that purpose, where there, was no actual residence for five years by the persOll·who entry, nor by her heirs after her death, upon the land prior to the iS8Mnce ot aD+! the proofs in the land-office on which the entry waS' allowed only show that the person J;llaking the original ap,Plication to enter it as a homestead lived on it for only three or. foUr'months ,:was ,taken no r.esidence,o,," the land by, the "i , ., ' ' , " "
,In,Equity. .'" P. O. Sullivan, J,U$t. U.S. Atty. R. Williamson, for,derJililant8.
HANFORD, J. '; This W to can-ceIa pa:tent iss'qed under the prosuit visiops of section 2291,' ReV St. U. 8";, part of the act of congress known , The object cjf this law was to grant land ,to!tctual settlers. for use .as homesteads, and to ericourage tbe settlement, cultivation, a'nd improvement ofthe public-domain. It sary, to obtain a validtitltl under this law; 'that thet'eshall have been an actualsettlemeht on the la:nd and a continuous residence and cultiV'ation theteof for at least five years. Tbe proMs'tAkEm in' this case d tuing the proqee(ijqgs in court cle&rly show tbatthere wail residenee!by the person who made the original entry, t,lor by ber beirs after her upon the land prior to the issuance of the patent; and the proofs taken. in th¢ land-'6ffice on whicb ·theentry was allowed do' not show that there wasev:er.'oohtinuous residence for the :period of five years. They only ,go to the of showing ,that; the person who made, tbe originalapit for aperiodof three or four plication to enter it as a months before she was taken ill,andJrom that ti,me there was denee upon the landsbown by the testimony. The law not having been no right t() a patent existed at the time tbe proofs were ',takerl'Ort1t. the time the patent was issued. ,.. defe1l4antsin the suit have not conveye4the title. They goyem,ment,itrHl'pav¢' valid defens.a against' tbis' suit. Therefore a decree will be illBCcordance with the: prayer plaintitf!sbill. ; ",
; , .
(Oircuit OO'Urt, D.,
N. D. April 10, 1891.)
The power of the commissioner of the generalland-oftlce to cancel entries of public land!B,after finalprqpf ,has been J;Ilade, and a final certi:llcate issued, extends only to cases of entries'made upon false' testimony or Without authority of law; and the decisions made in the land department are only conclusive in so far as they relate to pure questions of factunmlxed with conclusions of law. In a 8nit for an injunction to prevent waste, held, upon exceptions for insufficiency, to a plea alleging cancellation of the pre-emption entry under which the plaintiff claims the land pursuant to a decision of the secretary of the interior in a contest proceeding initiated after final pre.of, that such a d.ecision containing no special or separate findings of fact, and 'only a declamtiqn to. the effect that. the pre-emptor "had not made his filing, application, and 'entry in .good faith to appropriate the land to bis own use and benefit, as required by law," and tbat be bad not "made tbe necessary residence, cUltiv'll.tioll\ and improvement to entitle him to enter said land," is not conclusive upon the courts, and that the plea is insufficient. '
IIi Equity. &: Jenner, for pll1ointiff. D.,Q; for
HAN'FoRD, J. ThEfeoI1lplainartt claims ownership of certain land by virtne of mesne conveyances from one who entered the same as public land of the United States under the pre-emption law, and obtained a final receipt or patent certificate from tlle land-office of the district in which the lands are situated, after having'made the affidavits, proofs, and payment required by said law; and he brings this suit for an injunction ,tt! the of waste upon said land by the defendant. . legal title to tl;1e land is in the governmeilt, :q.o patent having been issued. 'l'he .is iIi possession, claiming the right toacquire title thereto byfllsidence and cultivation under the land laws of the United States. the prior entry of the plaintiff's grantor the defeq<jant in bis answer makes the following plea:
"That"the special agent o,Uhe, land department, in his report as to said entryand)Uings of thl)said William Carley, charged that the same was not made jJ1. good faith to appropriate the said land to his own exclusive use and benefit, as required by law; and that tbe said pre-emptor, William Carley, had failed to comply with the law in the matter of the settlement, cultivation, and improvement of the land. That upon the investigation had upon notice and appearance of the parties as bereinbefore alleged, the register and recei ver of·. the ·Iand-office found asa matter of .fact tbat the charges. so made by the of the la,nd department wt;lre true, and held the said entry for and that JIpon appeal tbe commissioner of the general land-office tbe find\ngsoftbe register and receiver; and that upon appeal to the secretary of the interior the said secreta)!)' by his decision rendered on the 2d day of Match, 1889, affirmed the rulings of the register and recei ver and com,missioner Of tbe general land-office, and beld the entry of the said William Carley for cancellation for tbe That said Carley had not made hiB filing, application, "cd entry in good faith to approp,riate the land to his own use and benefit, as reqUired by law. Second. That the said Carley had 'Jot made the necessary residence, cultivation, and improvement to entitle him to enter said land; and that, in accordance with said findings, ordered tbe laid llntry canceled, and that the same be restored to sale to the first legalappli-