(c) When quitclaim deed required. Where title under an invalid entry or patent has become a matter of record, a duly executed quitclaim deed, relinquishing to the United States all right, title, and claim to the land, acquired under the entry, or patent, must accompany the application for repayment. (d) Recording of quitclaim deed. The deed referred to in the preceding section must be duly recorded, and a certificate must also be produced from the proper recording officer of the county wherein the land is situated, showing that said deed is so recorded and that the records of his office do not exhibit any other conveyance or encumbrance of the title to the land. (e) Conformance to State laws. The reconveyance to the United States must conform in every particular to the laws of the State in which the land is located relative to transfers of real property. (f) Reconveyance unnecessary. If the applicant has also acquired the valid title conveyed by the United States, a reconveyance of the land is unnecessary, but a relinquishment, waiving all claim under the illegal entry, is required, together with corroborative evidence of the facts, preferably an abstract of title and a statement in full in support of the claim for repayment. § 1822.3-4 Repayment to heirs, executors, administrators. (a) Where application is made by heirs, satisfactory proof of heirship is required. This must be the best evidence that can be obtained and must show that the parties applying are the heirs and the only heirs of the deceased. (b) Proof of heirship should be made in the form of a statement, corroborated by two witnesses, setting forth the date of the death of the intestate; whether the intestate left surviving a husband or wife, as the case may be; the full name and age of such husband or wife; the names and ages of all children; and also state whether there is any issue of a deceased child or children. The statement should set forth all the facts, in order that the Bureau of Land Management may determine who are the legal heirs, in accordance with the laws of descent and distribution of the State where the land is situated. (c) In case there are minor heirs not under the guardianship of a duly appointed guardian, and the amount to be repaid is $200 or less, the surviving parent may execute the application as the natural guardian of such heirs. Such application should be supplemented with a statement setting forth all the facts in detail. (d) Where application is made by executors, a certificate of executorship from the probate court must accompany the application. (e) Where application is made by administrators, the original, or a certified copy, of the letters of administration must be furnished. § 1822.3-5 Repayment to assignees. (a) Those persons are assignees, within the meaning of the statutes authorizing the repayment of purchase money, who purchase the land after the entries thereof are completed and take assignments of the title under such entries prior to complete cancellation thereof, when the entries fail of confirmation for reasons contemplated by the law. (b) Where applications are made by assignees, the applicants must show their right to repayment by furnishing properly authenticated abstracts of title, or the original deeds or instruments of assignment, or certified copies thereof. (c) In the place of an abstract of title the applicant may furnish a certificate of the recording officer of the county in which the land is situated, showing all alienations or liens affecting title to the land in connection with the entry upon which the claim for repayment is based. (d) The applicants must also show that they have not been indemnified by their grantors or assignors for the failure of title, and that title has not been perfected in them by their grantors through other sources. (e) Where there has been a conveyance of the land and the original purchaser applies for repayment, he must show that he has indemnified his assignee or perfected the title in him through another source, or produce a full reconveyance to himself from the last grantee or assignee. (f) To construe said statutes so as to recognize the assignment or transfer of the mere claim against the United States for repayment of purchase money, or fees and commissions, disconnected from a sale of the land or attempted transfer of title thereto, would be against the settled policy of the Government and repugnant to section 3477 of the Revised Statutes (31 U.S.C. 203). (2 Lawrence, First Comp. Dec. 264, 266, and 6 Dec. Comp. of the Treasury, 334, 359.) (g) Assignees of land who purchase after entry are, in general, deemed entitled to receive the repayment when the lands are found to have been erroneously sold by the Government. But this rule does not apply to the repayment of double-minimum excesses. (First Comp. Dec. in case of Adrian B. Owens, Copp's Public Land Laws, 1890, vol. 2, p. 1238.) § 1822.3-6 Repayment to mortgagees. (a) Mortgagees are not assignees within the meaning of the repayment laws, but may become such by pursuing the course suited to the particular case as follows: (1) Where, after date of entry and prior to cancellation thereof, the land is mortgaged and the mortgagee receives a sheriff's deed under foreclosure proceedings, the mortgagee becomes an assignee. (See 193 U.S. 651, 58 L. ed. 830; 28 L.D. 201, 30 L.D. 136.) (2) Where a mortgage is executed prior to the cancellation of an entry, and a deed made to the mortgagee after such cancellation, the holder of such deed becomes the assignee. (See 26 L.D. 425.) (b) In either case, complete evidence must be furnished to establish the applicant's right to repayment by producing the original deeds or instruments, or certified copies thereof showing all transactions, together with certified copies of the court proceedings. Subpart 1823-Proofs and Testimony AUTHORITY: The provision of this Subpart 1823 issued under R.S. 2478, 43 U.S.C. 1201. SOURCE: The provisions of this Subpart 1823 appear at 35 F.R. 9520, June 13, 1970, unless otherwise noted. § 1823.1 Time and place; appearances. § 1823.1-1 Time; place; continuance. Final proofs should in every case be made at the time and place advertised, and before the officer named in the notice, at his regularly established office or place of business, and not elsewhere. Between the hours of 8 a.m. and 6 p.m. on the day advertised the officer named in the notice should call the case for hearing, and should the claimant fail to appear with his witnesses between those hours, or the taking of the proof fail to be completed on that day, the officer should continue the case until the next day, and on that day or any succeeding day should the claimant or his witnesses fail to so appear he should proceed in like manner to continue the case from day to day until the expiration of 10 days from the date advertised, but proof cannot be taken after the expiration of the tenth day. Upon continuing any case in the manner indicated the officer continuing the same should in the most effective way available give notice of such continuance to all interested parties. § 1823.1-2 Who may appear. or Protestants, adverse claimants, other persons desiring to be present at the taking of any proof for the purpose of cross-examining the claimant and his witnesses, or to submit testimony in rebuttal, should be allowed to appear for that purpose on the day advertised, or upon any succeeding day to which the case may be continued. If any person appears for the purpose of filing a formal protest against the acceptance or approval of the proofs or contest against the entry and does nothing more than file same, such protest or contest should be received and forwarded to the manager for his consideration and action. § 1823.2 Procedures. § 1823.2-1 Examination of claimant and witnesses. All final proofs should be reduced to writing by or in the presence of and under the supervision of the officer taking them, and in all cases where no representative of the Government appears for the purpose of making crossexaminations the officer taking the proof should use his utmost endeavor and diligence so to examine the entryman and his witnesses as to obtain full, specific, and unevasive answers to all questions propounded on the blank forms prescribed for the taking of such proofs, and in addition to so doing he should make and reduce to writing and forward to the manager with the proof such other and further rigid cross-examination as may be necessary clearly to develop all pertinent and material facts affecting or showing the validity of the entry, the entryman's compliance with the law, and the credibility of the claimant and his witnesses. And, in addition to this, he should inform the manager of any facts not set out in the testimony which in his judgment cast suspicion upon the good faith of the applicant or the validity of the entry. § 1823.2-2 Testimony to be taken separate and apart from and not within the hearing of the others. The testimony of each claimant should be taken separate and apart from and not within the hearing of either of his witnesses, and the testimony of each witness should be taken separate and apart from and not within the hearing of either the applicant or of any other witness, and both the applicant and each of the witnesses should be required to state in and as a part of the final proof testimony given by them that they have given such testimony without any actual knowledge of any statement made in the testimony of either of the others. § 1823.2-3 Advice concerning laws and penalties for false swearing. Officers taking affidavits and testimony should call the attention of parties and witnesses to the laws respecting false swearing and the penalties therefor and inform them of the purpose of the Government to hold all persons to a strict accountability for any statements made by them. § 1823.2-4 Fees; costs. (a) Reducing testimony to writing. On all final proofs made before the manager, or before any other officer of the Bureau of Land Management authorized to take proofs, the claimant must pay to the manager the costs of reducing the testimony to writing, as determined by the manager. No proof shall be accepted or approved until such payment has been made. § 1823.3 Transmittal of proof papers. The officer who has taken a proof should, after duly certifying the papers, promptly transmit them to the manager. In no case should the transmittal thereof be left to the claimant. § 1823.4 Proof on entries in more than one district. (a) In submitting proof, the two entries should be treated as one, and the published notice of intention should describe all the land and specify in which land district each part of the claim is located. If the notice is published correctly and the proof is satisfactory, the manager who issued the notice for publication will issue final certificate for the portion within his land district on payment of the testimony fees and payment of the commissions and (if required) the purchase money due for the land in his district. He will then advise the manager of the district wherein the remainder of the claim is located, who will, on receipt of the final commissions and purchase money (if any) due for the part in his district, issue final certificate for that portion without further proof. (b) Should a proof be rejected by the office from which the notice of intention is issued the appeal or further showing must be filed in the office which rejected the proof. § 1823.5 Conduct of officers. § 1823.5-1 Prohibited activities. No officer authorized to take final proofs shall, directly or indirectly, either as agent, attorney, or otherwise, in any manner or by any means cause, aid, encourage, induce, or assist any person wrongfully or illegally to acquire, or attempt to acquire, any title to. interest in, use of, or control over any public lands belonging to the United States. Subpart 1824-Publication and Posting of Notices AUTHORITY: The provisions of this Subpart 1824 issued under 20 Stat. 472; 43 U.S.C. 251. SOURCE: The provisions of this Subpart 1824 appear at 35 F.R. 9521, June 13, 1970, unless otherwise noted. The object of the law requiring publication of notices of intended final proof on entries of public lands is to bring to the knowledge and attention of all persons who are or who might be interested in the lands described therein or who have information concerning the illegality or invalidity of the asserted claims thereto, the fact that it is proposed to establish and perfect such claims, to the end that they may interpose any objection they may have, or communicate information possessed by them to the officers of the Bureau of Land Management. § 1824.1 Selection of newspaper. Qualifications of newspaper. (a) A notice of intended final proof must be published in a newspaper of established character and of general circulation in the vicinity of the land affected thereby, such paper having a fixed and well-known place of publication. No 27 newspaper shall be deemed a qualified medium of notice unless it shall have been continuously published during an unbroken period of 6 months immediately preceding the publication of the notice, nor unless it shall have applied for and been granted the privilege of transportation in and by the United States mails at the rate provided by law for second-class matter (39 CFR, Part 132). § 1824.1-2 Discretionary authority of manager; limitations. (a) The law invests managers with discretion in the selection of newspapers to be the media of notice in such cases as are here referred to, but that discretion is official in character, and not a purely personal and arbitrary power to be exercised without regard for the object of the law by which it is conferred. (b) In designating papers in which notices of intention to make final proof under the act of March 3, 1879 (20 Stat. 472; 43 U.S.C. 251) shall be published, the manager shall designate only such reputable papers of general circulation nearest the land applied for, the rates of which do not exceed the rates established by State laws for the publication of legal notices. § 1824.2 Payment for republication of notice. (a) The law imposes upon managers the duty of procuring the publication of proper final-proof notices, and charges the claimant with no obligation in that behalf, except that he shall bear and pay the cost of such publication. (b) Neglect of the duty defined in paragraph (a) of this section, resulting in a requirement of republication, should not visit its penalty upon the claimant. In all such cases, therefore, the entire cost of such republication shall be borne by the Government. If an error is committed by the printer of the paper in which the notice appears, the manager may require such printer to correct his error by publishing the notice anew for the necessary length of time at his own expense, and for his refusal to do so may decline to designate his said paper as an agency of notice in cases thereafter arising. § 1824.3 Frequency of publication. (a) In many cases it is necessary to designate a daily paper in which to publish the notices of intention to submit final proof required to be given by homestead and desert land entrymen as well as the notices of location of other claims. (b) The expense of publishing such notices for the prescribed period in every issue of a daily paper is often prohibitive, and the object of publication of such notices can be accomplished by a less number of insertions. Therefore, in all cases where the law does not specifically otherwise direct, publication will be made as follows: (1) Where publication is required for 30 days, if the manager designates a daily paper, the notice should be published in the Wednesday issue for five consecutive weeks; if weekly, in five consecutive issues, and if semiweekly, or triweekly, in any one of the weekly issues for five consecutive weeks. (2) Where publication is required for 60 days, except in mining cases, if the manager designates a daily paper the notice should be published in the Wednesday issue for nine consecutive issues; if weekly in nine consecutive issues; if semiweekly or triweekly in any one of the weekly issues for nine consecutive weeks. (c) Publication of notice in mining cases must be made in accordance with § 3862.4-1 of this chapter. Subpart 1825-Relinquishments AUTHORITY: The provisions of this Subpart 1825 issued under R.S. 2478; 43 U.S.C. 1201. SOURCE: The provisions of this Subpart 1825 appear at 35 F.R. 9521, June 13, 1970, unless otherwise noted. § 1825.1 When relinquished land becomes subject to further appropriation. (a) Upon the filing in the proper land office of the relinquishment of a homestead claim, the land, if otherwise available, will at once become subject to further application or other appropriation in accordance with the applicable public land laws. A provision to this effect is contained in section 1 of the act of May 14, 1880 (21 Stat. 140; 43 U.S.C. 202) (b) Upon the filing of a relinquishment of an entry or claim (other than a homestead claim), or a lease, the land will not become subject to further application or other appropriation until the entry, claim or lease has been canceled pursuant to the relinquishment and the fact of the cancellation has been noted on the tract books in the land office. AUTHORITY: The provisions of this Subpart 1826 issued under R.S. 2478; 43 U.S.C. 1201. § 1826.1 Application for reinstatement. (a) An application for the reinstatement of a canceled entry, while pending, operates to reserve the land covered thereby from other disposition. (b) Applications for reinstatement of canceled entries must be filed in the proper land office and must be executed by the entryman, his heirs, legal representatives, assigns, or transferees, as the case may require. If made by other than the entryman, such petition for reinstatement must fully set forth the nature and extent of petitioner's interest in the land, how acquired, and the names and addresses of any other person or persons who have or claim an interest therein. All petitions for reinstatement should set forth all facts and state clearly and concisely upon, what grounds reinstatement is urged. Such petition must be signed by the applicant. (c) Applications for reinstatement of canceled entries executed by agents and attorneys will not be recognized. (d) Should an application for reinstatement be filed not conforming to the foregoing, the manager will promptly advise the party thereof, calling his attention to the defects and allow 15 days in which to file a proper application. (e) All applications must be accompanied by an application service fee of $10 which is not returnable. 1843.5 1843.6 1843.7 Request for hearings on appeals involving questions of fact. Request for oral argument. Decision by Board. AUTHORITY: The provisions of this Part 1840 issued under R.S. 2478, as amended; 43 U.S.C. 1201. Subpart 1840-Appeals Procedures; General SOURCE: The provisions of this Subpart 1840 appear at 35 F.R. 9522, June 13, 1970, unless otherwise noted. § 1840.0-3 Authority. Sections 1840.0-3 to 1843.7 are issued under the authority of R.S. 2478, as amended; 43 U.S.C. 1201. [Cir. 2273, 35 F.R. 10010, June 18, 1970] § 1840.0-5 Definitions. As used in this part: (a) "Secretary" means the Secretary of the Interior or his authorized representatives. (b) "Bureau" means Bureau of Land Management. (c) "Board" means the Board of Land Appeals in the Office of Hearings and Appeals, Office of the Secretary. The terms "office" or "officer" as used in this part include "Board" where the context requires. (d) "Examiner" means a hearing examiner in the Office of Hearings and Appeals, Office of the Secretary, appointed under section 3105 of title 5 of the United States Code. [35 F.R. 9522, June 13, 1970, as amended by Cir. 2273, 35 F.R. 10010, June 18, 1970] § 1840.0-6 Documents. (a) Filing of documents. A document is filed in the office where the filing is required only when the document is received in that office during the office |