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STEWART V. MCHARRY, 159 U. S. 643 (1895)

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U.S. Supreme Court

Stewart v. McHarry, 159 U.S. 643 (1895)

Stewart v. McHarry

No. 366

Submitted October 22, 1895

Decided November 18, 1895

159 U.S. 643


In March, 1876, S. went into actual possession and occupation of a tract of public land in California which was then reserved from settlement on account of unsettled Spanish and Mexican land grants, and which continued so reserved until April, 1883. On the second of October, 1882, the wife of S., being then the owner of an adjoining tract, on which she and S. resided, conveyed that tract to her husband. On the 10th of December, 1883, S. appeared in person at the United States land office in San Francisco and represented that he was a naturalized citizen of the United States, the head of a family, that he was 56 years of age, and that since October 2, 1882, he had been the owner of and in actual and peaceable possession of the tract conveyed to him by his wife, and he applied to enter, as an adjoining farm homestead, under Rev.Stat. sections 2289 and 2290, the tract so taken possession of by him in March, 1876. After payment of the fees and commissions required by law, he was permitted to enter that tract as an adjoining farm homestead. On the 13th of December, 1883, M. filed a preemptive declaratory statement in the same land office, which statement included the tract so occupied and entered by S., and alleged a settlement thereon by himself on the 19th of January, 1876. Thereupon a contest took place between S. and M., first before the register and receiver of the local land office; then, on appeal, before the Commissioner of the General Land Office; and, finally, on appeal, before the Secretary of the Interior. In these proceedings it appeared that S. had not resided continuously on the original farm, but had leased it to a tenant for a number of years, including the period of his adjoining farm entry, and S., in reply, claimed that he did not reside there because of danger of violence and injury at the hands of M. The Secretary of the Interior, while intimating that the proof failed to show the required residence on the part of S., decided that the excuse set up by him for nonresidence was not sustained by the evidence. Held that the ownership and title shown by S. were sufficient to entitle him to an additional farm homestead, but that the question of his residence on the land conveyed to him by his wife was one of fact which the courts had no jurisdiction to reexamine in the absence of a clear showing that the decision was procured by fraud or imposition.

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Page 159 U. S. 644

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