A-28879, NOVEMBER 4, 1929, 9 COMP. GEN. 185

A-28879: Nov 4, 1929

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HOMESTEAD ENTRIES - REFUNDS A PURCHASER OF INDIAN LANDS UNDER HOMESTEAD ENTRIES MADE IN 1916 IS NOT ENTITLED TO REFUND OF THE DIFFERENCE BETWEEN THE PURCHASE PRICE AND INTEREST PAID UNDER A CLASSIFICATION AND APPRAISEMENT MADE IN ACCORDANCE WITH LAW AND THE AMOUNT THAT WOULD HAVE BEEN PAYABLE BASED ON A RECLASSIFICATION OF THE LANDS MADE IN 1928 AFTER PATENTS HAD ISSUED IN 1926. PARTICULARLY WHEN THE APPLICATION FOR REFUND WAS NOT FILED WITHIN TWO YEARS AFTER PATENTS HAD ISSUED FOR THE LANDS. THE AMOUNT WHICH WOULD HAVE BEEN PAYABLE UNDER A REAPPRAISEMENT AND RECLASSIFICATION OF THE LANDS IN QUESTION. THAT PAYMENTS THEREON WERE COMPLETED IN 1925. THE LANDS WERE THEREAFTER RECLASSIFIED AND REAPPRAISED.

A-28879, NOVEMBER 4, 1929, 9 COMP. GEN. 185

HOMESTEAD ENTRIES - REFUNDS A PURCHASER OF INDIAN LANDS UNDER HOMESTEAD ENTRIES MADE IN 1916 IS NOT ENTITLED TO REFUND OF THE DIFFERENCE BETWEEN THE PURCHASE PRICE AND INTEREST PAID UNDER A CLASSIFICATION AND APPRAISEMENT MADE IN ACCORDANCE WITH LAW AND THE AMOUNT THAT WOULD HAVE BEEN PAYABLE BASED ON A RECLASSIFICATION OF THE LANDS MADE IN 1928 AFTER PATENTS HAD ISSUED IN 1926, PARTICULARLY WHEN THE APPLICATION FOR REFUND WAS NOT FILED WITHIN TWO YEARS AFTER PATENTS HAD ISSUED FOR THE LANDS.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 4, 1929:

ALLEN W. SWETT HAS APPLIED FOR REVIEW OF THE ACTION TAKEN IN DISALLOWING HIS CLAIM FOR $1,105.26, REPRESENTING THE DIFFERENCE IN PURCHASE MONEY AND INTEREST BETWEEN THE AMOUNT PAID BY HIM ON HOMESTEAD ENTRY GREAT FALLS, MONT., 054889, FORMERLY GLASGOW 042512 (INTERIOR 383698), AND HOMESTEAD ENTRY GREAT FALLS, MONT., 055464, FORMERLY GLASGOW 038586 (INTERIOR 383702), AND THE AMOUNT WHICH WOULD HAVE BEEN PAYABLE UNDER A REAPPRAISEMENT AND RECLASSIFICATION OF THE LANDS IN QUESTION.

IT APPEARS THAT THE CLAIMANT MADE ENTRY ON THE LAND IN 1916, THAT PAYMENTS THEREON WERE COMPLETED IN 1925, AND THAT PATENTS ISSUED FEBRUARY 8, 1926. ON NOVEMBER 30, 1928, CLAIMANT APPLIED FOR A RECLASSIFICATION AND REAPPRAISEMENT OF THE LANDS UNDER AUTHORITY OF THE ACT OF JUNE 6, 1912, 37 STAT. 125. THE LANDS WERE THEREAFTER RECLASSIFIED AND REAPPRAISED, AND ON FEBRUARY 15, 1929, CLAIMANT EXECUTED AN APPLICATION FOR A REFUND ON THE BASIS OF SUCH RECLASSIFICATION AND REAPPRAISEMENT.

THE CLAIM FOR REFUND APPEARS TO BE BASED ON SECTION 2 OF THE ACT OF DECEMBER 11, 1919, 41 STAT. 366, WHICH PROVIDES AS FOLLOWS:

THAT IN ALL CASES WHERE IT SHALL APPEAR TO THE SATISFACTION OF THE SECRETARY OF THE INTERIOR THAT ANY PERSON HAS HERETOFORE OR SHALL HEREAFTER MAKE ANY PAYMENTS TO THE UNITED STATES UNDER THE PUBLIC LAND LAWS IN EXCESS OF THE AMOUNT HE WAS LAWFULLY REQUIRED TO PAY UNDER SUCH LAWS, SUCH EXCESS SHALL BE REPAID TO SUCH PERSON OR TO HIS LEGAL REPRESENTATIVES: PROVIDED, THAT SUCH PERSON OR HIS LEGAL REPRESENTATIVES SHALL FILE A REQUEST FOR THE REPAYMENT OF SUCH EXCESS WITHIN TWO YEARS AFTER THE PATENT HAS ISSUED FOR THE LAND EMBRACED IN SUCH PAYMENT, OR WITHIN TWO YEARS FROM THE PASSAGE OF THIS ACT AS TO SUCH EXCESS PAYMENTS AS HAVE HERETOFORE BEEN MADE. PATENT ISSUED FOR THE LAND HERE IN QUESTION ON FEBRUARY 8, 1926, AND APPLICATION FOR REPAYMENT WAS NOT FILED UNTIL FEBRUARY 6, 1929, MORE THAN THREE YEARS AFTER THE DATE OF THE PATENT. THEREFORE, SAID APPLICATION FOR REPAYMENT DID NOT CONFORM TO THE REQUIREMENT IN THE STATUTE UNDER WHICH THE CLAIM WAS ASSERTED.

FURTHERMORE, THE LANDS HERE IN QUESTION WERE CLASSIFIED, APPRAISED, AND VALUED PURSUANT TO THE ACT OF MAY 30, 1908, 35 STAT. 558, AND CLAIMANT'S ENTRIES ON THE BASIS OF THE CLASSIFICATION, APPRAISEMENT, AND VALUES FIXED IN ACCORDANCE WITH SAID ACT WERE ALLOWED IN 1916, APPROXIMATELY FOUR YEARS AFTER THE ENACTMENT OF THE ACT OF JUNE 6, 1912, 37 STAT. 125, PROVIDING FOR CERTAIN RECLASSIFICATIONS AND REAPPRAISEMENTS, AND PAYMENTS WERE COMPLETED ON THE BASIS OF THE CLASSIFICATION, APPRAISEMENT VALUE AS FIXED UNDER THE ACT OF 1908, AND PATENTS ISSUED ON THAT BASIS IN FEBRUARY, 1926, AND APPLICATION FOR REAPPRAISEMENT WAS NOT FILED UNTIL JULY 29, 1927, OVER 15 YEARS AFTER THE ENACTMENT OF THE LAW PROVIDING FOR CERTAIN RECLASSIFICATIONS AND REAPPRAISEMENTS AND OVER ONE YEAR AFTER ALL OF THE GOVERNMENT'S TITLE AND INTEREST IN THE LANDS HAD BEEN DIVESTED BY THE ISSUANCE OF PATENTS THEREFOR TO THE CLAIMANT. UNDER SUCH CIRCUMSTANCES IT IS AT LEAST DOUBTFUL WHETHER THERE WAS ANY AUTHORITY UNDER THE ACT OF JUNE 6, 1912, CITED, FOR THE RECLASSIFICATION AND REAPPRAISEMENT OF THESE LANDS IN NOVEMBER, 1928.

IT IS TO BE NOTED ALSO THAT SECTION 2 OF THE ACT OF DECEMBER 11, 1919, CITED, AUTHORIZES REPAYMENT ONLY WHEN THE CLAIMANT HAD MADE PAYMENTS TO THE UNITED STATES UNDER THE PUBLIC LAND AWS" IN EXCESS OF THE AMOUNT HE WAS LAWFULLY REQUIRED TO PAY UNDER SUCH LAWS.' IN THIS CASE THE PAYMENTS WERE NOT IN EXCESS OF THE AMOUNT THE PURCHASER WAS LAWFULLY REQUIRED TO PAY UNDER THE PUBLIC LAND LAWS ON THE BASIS OF THE CLASSIFICATION AND APPRAISEMENT THAT HAD BEEN MADE IN ACCORDANCE WITH LAW AND WERE STILL IN FULL FORCE AND EFFECT AT TIME PATENTS ISSUED. FURTHERMORE, THE NET PROCEEDS OF THE SALE TO CLAIMANT IN THIS CASE WERE REQUIRED BY SECTION 15 OF THE ACT OF MAY 30, 1908, 35 STAT. 563, TO BE PLACED TO THE CREDIT OF THE FORT PECK RESERVATION INDIAN TRIBE, WHEREAS SECTION 3 OF THE ACT OF DECEMBER 11, 1919, MAKES AN APPROPRIATION OUT OF THE GENERAL FUND OF THE TREASURY FOR ALL REPAYMENTS AUTHORIZED UNDER SECTION 2 OF SAID ACT.

FOR REASONS HEREIN STATED DISALLOWANCE OF THE CLAIM MUST BE AND IS SUSTAINED.