Petition for rehearing in Love v. Flahive, 205 U.
A sale made by a party who is in possession of a tract of public
land with an intent thereafter to enter it as a homestead is
equivalent to a relinquishment of the right to enter, and the
Department may properly treat the party making the sale as having
no further claims upon the land. He may not sell and still have the
rights of one who has not sold; nor does he by merely continuing in
possession create a new right of entry against the party in whose
favor he relinquished his right.
The facts are stated in the opinion.
MR. JUSTICE BREWER delivered the opinion of the Court.
A petition for rehearing calls our attention to a misstatement
in the opinion. We said that
"it appears from the complaint and exhibits that, during the
time that these proceedings were pending in the Land Department,
Love made a sale to James Rundell,"
etc. The facts are that, in May, 1882, Love settled upon and
occupied the tract in controversy with the purpose of entering it
as a homestead; that the land was then unsurveyed public land; that
it was not surveyed until 1888, and that, on January 2, 1889,
plaintiff for the first time filed in the land office an
application for an entry. It further appears that the sale to
Rundell was made in September, 1883, after the original settlement
by the plaintiff, while the land was unsurveyed, and before the
application to enter. Hence, it is not strictly true that, while
"proceedings were pending in the Land Department,
Page 206 U. S. 357
Love made a sale," for there was nothing of record or on file in
that Department until after the entry.
Now the plaintiff contends that, conceding that there was a
sale, and that thereby the plaintiff relinquished the right of
entry which he had acquired by his settlement, yet thereafter,
without having abandoned the possession, he filed his application
in the land office; that that application must be considered as an
entirely new proceeding, initiated by one in actual possession,
desiring to take the land as a homestead, and that it is error, and
error of law, to adjudge it vitiated or affected by the prior
Conceding that the effect of a sale prior to the application
projects into the case a question of law, we are still of opinion
that the decision of the Secretary was right, and that the award of
the patent to Mrs. Flahive must be sustained. A sale made by a
party who is in possession of a tract of public land with an intent
thereafter to enter it as a homestead is equivalent to a
relinquishment of his right to enter, and the Department may
properly treat him as having no further claims upon the land. He
may not sell, and still have the rights of one who has not sold. He
does not, by merely continuing in possession, create a new right of
entry as against the party in whose favor he has relinquished his
We are of opinion, therefore, that the sale in 1883 was
rightfully held by the Department to estop the plaintiff from
subsequent entry of the land -- at least as against one who was a
purchaser from his vendee.
The petition for rehearing is