delivered the following dissenting opinion:
On the 10th day of August, 1872, the husband of the appellant, Silas Galliher, made a homestead entry of lot *513four (4), section ten (10), township twenty (20) north, of range three (3) east, of the Willamette meridian, situated in Pierce county, Washington Territory, and containing fifty-seven and one-fourth (57-£) acres of land. Galliher died April 13th following, never having resided on said land.
Before his death, however, he laid the foundation for a house upon the land, which house his widow erected after his death.
He also slashed (cleared) some land on the place. His widow moved upon the land with her family about three months after her husband’s death, and spent about $400 improving the place. She lived upon the place with her family a part of the time each year until the year 1876.
Upon this point she testified: “The first two years I spent more time on the claim than I did at Olympia, but the last two I spent more of my time at Olympia.” She ceased to make the claim her home in 1876, “because,” as she says, “ I had to. My money was all gone, and I had no way on it to make a living in 1873. I could not support my family if I remained there, and I had no money. ”
The homestead entry of Silas Galliher was canceled by the commissioner of the general land office, December 14, 1879, for want of final proof within the statutory period of seven years, after due notice.
On November 23, 1880, Mrs. Galliher filed with the register and receiver, at Olympia, an application to purchase said tract of land under the provisions of an act of congress entitled “An act relating to the public lands of the United States,” approved June 15, 1880, and at the same time tendered to the receiver the purchase price of said land. Her application and tender were rejected by the local officers, and on appeal to the commissioner of the general land office and the secretary of the interior, respectively, this decision was successively affirmed, on the ground that Mrs. Galliher had lost the right to purchase under the act of June 15, 1880, by reason of her abandonment of the homestead.
On the 20th of December, 1881, subsequent .in point of *514time to the application of Mrs. Galliher to purchase under the act of June 15, 1880, one F. B. H. Wing entered the tract of land in question, under and by virtue of an act of congress approved June 3, 1878, entitled “An act for the sale of timber lands in the States of California, Oregon, Nevada, and in Washington Territory,” and he received patent to the land April 20, 1882.
The appellee derives title to the tract of land by mesne conveyances through successive grantees of the patentee, Wing.
This suit was brought by the appellee to quiet the title to said premises, and the appellant was made a party defendant.
The latter, in her answer, set up the facts above recited, made a tender of the purchase price of said land, and prayed that the appellee be decreed to hold the title to said tract of land in trust for herself and the heirs of her husband, and that appellee be required to convey the same to her by a-good and sufficient deed.
The court below found against the appellant, and the whole case is now before us for review:
1. If the application of Mrs. Galliher to purchase under the act of June 15, 1880, was improperly rejected by the officers of the land department, then she is entitled to the relief prayed against the appellee, unless other facts, which I shall presently mention, constitute a bar. (Rector v. Gibbon, 111 U. S. 291; Townsend v. Greeley, 5 Wall. 326-35; Carpenter v. Montgomery, 14 Wall. 480-96; Shepley v. Cowan, 91 U. S. 330; Moore v. Robbins, 96 U. S. 530; Quinby v. Conlan, 104 U. S. 420; St. Louis Smelting Co. v. Kemp, 104 U. S. 636; Johnson v. Towsley, 13 Wall. 80; Silver v. Ladd, 7 Wall. 228; Cunningham v. Ashley, 14 How. U. S. 377 et seq.)
2. The application of Mrs. Galliher to purchase the land was rejected by the land department, on the theory that one who abandoned a homestead entry on the public lands was not entitled to the benefit of the provisions of the act of June 15, 1880. This was the first case where such a hold*515ing was made. Soon after the decision of the Galliher case another case,- involving the same questions, was brought before Secretary Teller, and he explicitly overruled the Galliher case. The following is his opinion:
‘ ‘ Secretary Teller to Commissioner McFarland, June 3, 1882:
“I have considered the appeal of John W. Miller from your decision of October 22, 1881, rejecting his application to purchase under the act of June 15, 1880 (21 Statutes, 237), the E. J of NE. -j.- of 6, 21 S., 27 E., Yisalia, California, entered April 28, 1873, homestead No. 777.
“It appears that your office canceled the entry, June 17, 1880, on failure of Mr. Miller to make final proof .within seven years from its date; that this land is still vacant, and that the fact of such cancellation is the only reason assigned for refusal to allow the present application; your decision being based on that of my predecessor in the case of Maria Galliher, June 1, 1881.
“ The act of 1880, section 2, specifically grants the right of purchase in all cases where the land was properly subject to the original entry, limited only by the proviso, that ‘ this shall in no wise interfere with the rights or claims of others who may have subsequently entered such lands under the homestead law.’
“As no subsequent entry upon any tract taken as a homestead can be made until after cancellation of such original homestead entry, this proviso would have nothing in any case whatever to operate upon, except upon the theory that the right of purchase thus limited might be exercised as well after cancellation as before, and that the only purpose of congress was to save any entry subsequently made in accordance with existing laws from prejudice or interference under the new enactment, but to bestow upon the original claimant the otherwise restricted right to acquire by purchase the land which he failed to secure by strict compliance with the law under which he had originally entered.
“ It can make no difference to the government whether the entry has been canceled or not. The mere act of cancellation has no force in connection with the statute.
*516"In this case less than two months had elapsed after the expiration of the seven years, and the entry was actually canceled after the passage of the remedial act; while there are on your files hundreds of entries still uneanceled, where months and years have passed since the expiration of the seven years limited by law for making final proof, yet the rule has not been applied to these, and the parties making such entries have been allowed the benefit of the act of 1880, whenever applied for.
"There can be no reason for this invidious distinction.
‘ ‘ Upon full consideration, I am convinced that the decision in the case of Galliher must have been inadvertent, and should not stand as a precedent — the true construction, as I apprehend, being as above stated. I accordingly reverse your decision, and direct the allowance of Miller’s application.” (Copp’s Land Owner, vol. 9, p. 57.)
This later decision has been followed by an unbroken line of decisions in the interior department, with one exception, down to the present time. The exception was an apparently inadvertent decision, made by Acting Commissioner Stockslager. The decision of Secretary Teller was affirmed by Secretary Lamar at a later period than the decision of Acting Commissioner Stockslager, and still later by Acting Secretary Muldrow. (Northern Pacific Railroad v. Burt, 12 Copp’s Land Owner, p. 138; Simpson v. Foley, 12 Copp’s Land Owner, p. 131.)
The reasons for the views which at present prevail in the interior department are clearly stated in the opinion of Secretary Teller, and they are satisfactory to me. I conclude, therefore, that the decision on Mrs. Galliher’s application to purchase was wrong, and that she was entitled to purchase.
3. The last proposition is not true if the original entry of Silas Galliher was fraudulent. I agree that one can acquire no rights to purchase under the act of June 15, 1880, by reason of an attempt to defraud the government through and by means of the homestead act. But I can find nothing in the record which establishes that Silas Galliher in*517tended any fraud when he made his original entry. The poor character of the soil of the tract in question, and the fact that it was heavily wooded, is urged as evidence of fraudulent intent. But it is more than likely that Galliher had the foresight to discern the future value of the land, by reason of its proximity to the growing city of Tacoma. If, foreseeing this, he was ready to undergo the hardships incident to making a home on the place for the required time, and of cultivating the same, his enterprise involved no fraud that I can see. It is true that he did not reside upon the place prior to his death, but he showed good faith by commencing the erection of a house, which his wife after-wards completed, and by slashing the undergrowth on the premises, or on a part of them. Why he did not do more is explained by the fact, stated in the testimony of his wife, that he was sick for a year before his death. Neither failure to reside upon land after homestead entry, nor abandonment after residence under such entry, constitute fraud. This is the holding of the land department. (Case of August Smith, 10 Copp’s Land Owner, p. 104.)
The holding of the department is in consonance with the law. There is nothing in either of said acts, construed according to the principles of law applicable to the doctrine of fraud, which will justify a decision that they constitute fraud. I conclude, therefore, that the homestead entry of Silas Galliher was not fraudulent.
4. It was insisted on the hearing that the appellant had slept on her rights until this land had become valuable, and that it was inequitable for her to now make her claim.
Patent was granted Wing April 20, 1882. Mrs. Galliher was brought into this suit, and required to formulate her claim to the land, in the summer of 1886. This was about four years after the patent to Wing. She was not barred of relief by the statute of limitations, nor has she slept an unreasonable length of time on her rights. There is absolutely nothing in the record upon which to ground a plea of equitable estoppel.
5. Neither is there anything upon which to found the de*518fense that the appellee or any of her grantors were purchasers for value without notice. This is a matter to be affirmatively pleaded. (Pomeroy’s Eq. Jur., vol. 2, see. 784.)
Not only is this defense not pleaded by appellee, but the reply expressly admits notice of the decision of the secretary of the interior adverse to Mrs. Galliher on the part of the appellee and all her grantees. If they knew of this decision, they had actual notice of the claim of Mrs. Galliher and of the equities in her favor.
For the foregoing reasons, I am of the opinion that the appellant was entitled to the decree prayed for in her answer, and I dissent from the conclusion reached by the majority of the court.