Concerning your duties in the administration of the aforesaid act I have to advise you as follows, to wit:
When the survey in the field finds two or more settlers with improvements on the same legal subdivision, o joint entry thereof will be allowed as heretofore:
If they so elect, however they may contract by and between themselves only that one of them may file for and enter the whole of such tract, and, after a patent is issued therefor to him, convey to the others their portion of sold land.
Under the last-named provision it is necessary that the said contract be made first, and that the tiling and entry shall both be made in pursuance thereof.
This contract must be made in signed by all parties thereto, attested by two disinterested witnesses, and acknowledged before some officer authorized to take acknowledgments of deeds within and for the State where the land is situated. The character and authority of the officer must be verified by the seal of a court of record. You will make no reference to the contract until the party seeks to make actual entry, when you will require the original paper if the same as been placed upon the records of the county, a duly certified copy thereof under seal will he sufficient.
You will require such proof of occupation by settlement,residence, and improvement, by each and every party to said contract, as would be sufficient under the former practice to justify a joint entry. Their good faith and compliance with law must be fully proven.
The proviso to section one is held to mean that not more than one hundred and sixty acres or a technical quarter-section, as allowed under the pre-emption laws, shall be ingluded in any one entry. An inconsiderable excess, when the tract is bounded by regular quater-section lines, will be permitted.
The act does not specify what improvements a settler must have on a legal subdivision, partly occupied by another, to entitle him to a joint entry, It is held, however, that each must have improvements of value, an dnot merely of a nominal character or ex, warrant a proceeding under this act.
The pre-emption affadavit as written on page 17 in circular of August 30, 1872, will be amended, in cases where entry is made under this act, by inserting utter the word "whomsoever," in the ninth (9th) line, the words "save under the act of March 3, 1873, and as specified in the contract herewith submitted in pursuance thereof."
You will in each case forward, with the entry papers, to this Office said original contract, or the certified copy from record as aforesaid.
You will perceive that the set refers only to pre-emptors on agricultural lands; and the word "homestead" in the last line of the proviso to the lint section is used only in a descriptive sense. You will also observe that where either or any of the parties settle "after" survey no joint entry or proceeding under this act can be had. Respectfully,
Prior to said act, when two or more settlers were found, on survey in the field, with valuable improvements on the some smallest legal subdivision of forty acres, they were allowed, under rulings of the Department, to make joint entry of such tracts when such a course constituted the only equitable method of adjustment. Under this act settlers may unquestionably proceed with more certainty and avoid litigation, after issue of patent, in the matter of a division of the land so jointly entered.
An act entitled "An act to authorize pro-emptors or settlers upon homesteads on the public land to alienate portions of their pre-emptions or homesteads for certain public purposes," was approved March 3, 1873, and is as follows, to wit:
Be it enacted, &c., That any person who has already settled or hereafter may settle on the public lands of the United States, either by premption or by virtue of the homestead law or any amendments thereto, shell have the right to transfer by warranty, against his or her own acts, any portion of his or her said pre-emption or homestead for church, cemetery, or school purposes, or for the right of way of railroads across such pre-emption or homestead, an the transfer for such public purposes shall in no way vitate the right to complete and perfect the title to their pre-emptions or home-steads.
The periods within which settlers under the pre-eruption laws must file their declaratory statements and make final proof and payment for their claims remain the some as at date of my lost report.
The district land-officers are instructed to permit no pre-emption entry
