delivered the following dissenting opinion.
—17. I concur in the foregoing opinion, except that part thereof denying the right of plaintiff to have included in the decree in his favor all of lots 9, 10, 11, and 12, *351of section 33, township 39 S., range 24 E., W. M., conveyed by J. A. Morrow to plaintiff, with reference to which I feel impelled to record my dissent.
From plaintiff’s testimony it appears that J. A. Morrow, while in possession of the land described as a preemptor, sold all his rights therein to Jack Rice, and removed from the premises, but subsequently returned, took possession thereof, and filed a homestead thereon. When this occurred does not appear, further than that, under the testimony, we must infer it was after making his pre-emption entry in January, 1889; nor does it appear how long he was absent before returning. The plaintiff merely states that his son and grantor J. A. Morrow, after making his pre-emption filing, left the country, and, after the decision of Hon. Hoke Smith in 1893, holding the land open to settlement, he returned, entered it as a homestead, and on July 5, 1895, made his final proof thereon. The complaint on this point alleges that, by reason of a full compliance with the law on the part of J. A. Morrow, the pre-emption was, on the date last named, commuted to a homestead, and final proof made accordingly. In making his final proof, under the law in force at that time, it was required of the person commuting his entry, in addition to a payment of the legal fees provided by law, to show a five-year continuous residence immediately prior to the date thereof, to establish which, in this instance, it was only necessary that the claimant establish, by satisfactory evidence, that he had, in good faith, resided upon the land from July 4, 1890, to July 5, 1895. That proof to this effect was made appears from the final receipt, in evidence, as follows:
“Final receiver’s receipt No. 587. Application No. 1937. Homestead. Receiver’s office, Lakeview, Oregon, July 5, 1895. Received of J. A. Morrow the sum of five dollars and seventy-five cents being the balance required by law for the entry of lots 9, 10, 11, and 12, sec. 33, *352Tp. 39 S., R. 24 E., containing 154.10 acres, under section 2291, Revised Statutes of the United States. Testimony 535 words at 22^ cents per one hundred words equals $1.20. V. L. Snelling, receiver. Under act of June 14, 1878.”
It is well settled that a final receipt is, so far as the rights of the person to whom it is issued is concerned, equivalent to a patent, and “the execution and delivery of the patent are mere ministerial acts of the officers charged with that duty, and when issued relate back to the date when the right thereto became perfected.” Budd v. Gallier, 50 Or. 42, 45 (89 Pac. 638).
18. The statement in the receipt to the effect that a certain number of words were paid for, as well as its form, discloses it to be his “final receipt.” The fact, then, that final proof was made, moneys received in full therefor, and receipt given raises a strong presumption of fact that he must have submitted proof disclosing a five-year continuous residence immediately prior to July 5, 1895, the date of offering his final proof. The law provides this shall be set forth in an affidavit to accompany the application for final proof, and that such facts must appear to the satisfaction of the local land officers before the applicant shall be permitted to offer such final proof, in reference to which the utmost strictness is enjoined upon the officer before whom the proof is taken.
19. The receipt quoted is signed by the receiver, but under the law proof is permitted to be taken before either the register or receiver (Potter v. U. S., 107 U. S. 129: 1 Sup. Ct. 524: 27 L. Ed. 330); and the certificate of such officer is evidence of the facts which it recites (Keith v. Cheeny, 1 Or. 285; Willamette Co. v. Gordon, 6 Or. 177), as well as of the steps necessary to be taken before such officer to entitle him to issue it. (10 Ene. Ev. p. 378; McDonald v. Edmonds, 44 Cal. 328; Kinney v. Degman, 12 Neb. 237: 11 N. W. 318).
*35320. Considering the fact that the sufficiency of Morrow’s residence was not questioned by, or in, any of the numerous proceedings before the different land departments of the government, and that his proof, like all final proofs offered from that vicinity, was set aside only on the assumption of being in conflict with the selections made by the State under the swamp act, it follows that the showing made by J. A. Morrow in his final proof was, in law, sufficient, the effect of which, being determined, impliedly at least, by the department, it is clearly held is not reviewable in the courts: Love v. Flahive, 205 U. S. 195 (27 Sup. Ct. 486: 51 L. Ed. 768). On this point, so far as the principles of law applicable thereto are concerned, this case is not unlike that of Tarpey v. Madsen, 178 U. S. 215, where, at page 220 (20 Sup. Ct. 849, at page 850: 44 L. Ed. 1042), Mr. Justice Brewer, in refering to the rights of the claimant, says: “And in this respect we must notice the oft-repeated declaration of this court that ‘the law deals tenderly with one who, in good faith, goes upon the public lands with a view of making a home thereon.’ Ard v. Brandon, 156 U. S. 537, 543 (15 Sup. Ct. 406: 39 L. Ed. 524) ; Northern Pac. R. v. Amacker, 175 U. S. 564, 567 (20 Sup. Ct. 236: 44 L. Ed. 274). With this declaration, in all its fullness, we heartily concur, and have no desire to limit it in any respect; and if Olney, the original entryman, was pressing his claims, every intendment should be in his favor, in order to perfect the title which he was seeking to acquire.”
The entire record discloses there was a continuous effort, on the part of Morrow and others, to press their claims when and wherever possible, and he is certainly entitled to have every intendment invoked in his favor: Brandon v. Ard, 211 U. S. 11, 29 Sup. Ct. 1, 53 L. Ed.—. Assuming as a matter of law, the government would not have issued the patent to Morrow without he also pre*354sented with the final receipt a certificate of the register of the land office concerning the land involved, certifying “that pursuant to Section 2291, Rev. St. [J. A. Morrow] has made payment in full,” and “that on presentation of this certificate to the commissioner of the General Land Office the said [J. A. Morrow] shall be entitled to. a patent for the tract of land above described,” yet it must be remembered, in this connection, that whether such a certificate was, in fact issued, the record does not reveal, neither does it appear, nor is it claimed, that none was issued, in the absence of which when the fact is recalled that the receipt, when unquestioned, raises a presumption that the steps necessary to entitle the applicant to such certificate had been taken, it must then be inferred that both the register and receiver passed upon the proceedings, and that such certificate of the register was duly issued: Potter v. U. S., 107 U. S. 126 (1 Sup. Ct. 524: 27 L. Ed. 330). Applying the rule invoked in Potter v. U. S., it follows: “As it does not appear in the record that the proof was not made to the satisfaction of both officers., it must be presumed” that the money paid Snelling, as receiver, was properly paid, and that the proper evidence was submitted, for under no other circumstances can we assume that the receipt was given; and for the same reason, since the record does not show that the register’s certificate was not issued and transmitted to the Commissioner of the General Land Office, it must be presumed to have been issued. The presumption is that officers do their duty, and it was certainly the register’s duty, when proof was submitted sufficient to entitle the office to receive the money, to make any certificate required under the rules of the department showing such fact. In the case last cited the receiver’s bondsmen were sued for money alleged to have been converted by the receiver while in office. The bondsmen defended on the theory that they were not liable for moneys accepted *355by the receiver during the time the register was absent from the land office. The funds converted were receipts from pre-emption sales. It was argued that Section 2263, Rev. St., required proof to be made to the satisfaction of both the register and receiver before the moneys to be paid in connection therewith could be received, that these two officers constituted a tribunal, and that no business could be transacted without the presence and action of both; and, as the register was absent, the moneys alleged to have been lost were received without authority of law, for which the sureties were not liable. In discussing this point Mr. Justice Woods observes:
“In our judgment this contention has no ground to stand on. There is no expression in the statute which requires the register and receiver to sit at the same time, and concurrently pass upon the sufficiency of the proof of settlement and improvement by pre-emptors. If the proof is submitted to the register on one day, and he is satisfied, there is nothing in the statute which implies that it may not be lawfully submitted, at some subsequent day, to the receiver for his approval. * * They are nowhere required to meet and jointly consider the sufficiency of the proof offered. If both are satisfied, that is all the law requires. It does not appear in the record that the proof by pre-emptors of the settlement and improvement of the lands, for which money was received by Potter during the absence of Brashear, had not been made to his satisfaction before he left the land district. If such proof had been made to the satisfaction of Brashear, all that was necessary to complete the right of the pre-emptor was the approval of Potter (the receiver), which was effectually expressed by his receipt of the money. What the law requires is that the conditions requisite to a pre-emption entry should be shown to have been performed to the satisfaction of both officers. As it does not appear in the record that the proof was not made to the satisfaction of both officers, it must be presumed that the money received by Potter in the absence of Brashear was justly due the United States' and was received by him in his official capacity. We find nothing, either in the case or the statutes cited by the plaintiffs in *356error, which tends to establish a different construction of the law.”
Again, as held in Duluth v. Roy, 173 U. S. 587, 590 (19 Sup. Ct. 549: 43 L. Ed. 820), a proper interpretation of the law only means:
_ “That the claimant against patent must so far bring himself within the laws as to entitle him, if not obstructed or prevented, to complete his claim. It does not mean that at the moment of time the patent issued it should have been awarded to him. The facts performed by him may or may not have reached- that completeness, may not have reached it, and yet justify relief; as in Ard v. Brandon, 156 U. S. 537 (15 Sup. Ct. 406: 39 L. Ed. 524) and in Morrison v. Stalnaker, 104 U. S. 213 (26 L. Ed. 741.) And because of the well-established principles that, where an individual in the prosecution of a right has done that which the law requires him to do, and he has failed to attain his right by the misconduct or neglect of a public officer, the law will protect him.”
Now, applying these principles to the case in hand, it would seem that, since the final proof was made; which necessarily included the taking of testimony showing sufficient residence, etc., and a receipt having been issued without protest or question, we must assume that all the necessary steps had been taken as by law required, up to that time, as to entitle him to a patent. The other proceedings to follow such proof and delivery of the receipt,such as the issuance of a certificate to that effect by the. register and patent based thereon, are ministerial duties only, a neglect to perform which could not work to Morrow’s prejudice. Budd v. Gallier, 50 Or. 42 (89 Pac. 638); Moran v. Horsky, 178 U. S. 205, 212 (20 Sup. Ct. 856: 44 L. Ed. 1038.)
When the receiver’s final receipt was offered in evidence by plaintiff, objection was made thereto by counsel for the defense, for the reason, and upon no other specified grounds, “that the said certificate was issued in violation of law and the rules of the General Land Office, there *357being a contest pending in reference to this land at the time of the issuance of the final receipt, and further that said final certificate was canceled, by the Honorable Commissioner of the General Land Office, Letter K, of May 9, 1903.” It will be observed from this objection that no question is raised concerning the sufficiency of the proof respecting Morrow’s residence; and, when construed with reference to other matters of'record, it is manifest that the “contest pending” had reference only to the questions alluded to and decided by the commissioner in Letter K, which only went to the legal effect of the selections made by the state, and the right of the claimant, under the law, to enter the land under the public land laws of the United States.
21. There is another question, in this connection, which merits serious consideration. The defendant company .and its grantors, from the time of the claimant’s entry upon the land, began to harass him, and many others in the vicinity, through various proceedings then in the land office. Various decisions by the Land Departments at Washington affecting Morrow’s rights were being handed down, which, to say nothing of the holdings of the state and federal courts, in the exposition of the law, were inconsistent and confusing, until it became practically impossible for any of the settlers, or their counsel, to determine with any degree of safety what their rights were. Defendant was wrongfully insisting upon Morrow’s surrender of the premises. Assuming plaintiff’s statement to the effect that the sale was made to Rice, and the premises temporarily abandoned, Rice appears no more in the record. It next appears that Morrow returned and took possession of the land, commuting it to a homestead, made proof, etc. Now, Rice is not here complaining, nor does it appear that any one claiming through him objects to Morrow’s proofs, or to any rights asserted through such proof. The defendant alone com*358plains, and it under the law has no valid claim to the land. Under the admitted facts the filings were of record when the state’s selections, were made, and rights claimed under such entry are still maintained, thereby defeating defendant’s claim under the grant. Whitney v. Taylor, 158 U. S. 85 (15 Sup Ct. 796: 39 L. Ed. 906); Eastern Oregon Land Co. v. Brosnan (C. C.) 147 Fed. 807. If an abandonment occurred, the rights were resumed before defendant’s rights could have attached; and, as to such abandonment under such circumstances (under'the authorities last cited), only the adverse settler can complain, not the company, especially since temporary desertion of the premises was occasioned by the defendant’s unlawful claims and acts. This view is in full accord with the intended policy of the government. Although made under a different state of facts, the remarks of Mr. Justice Brewer, in Ard v. Brandon, 156 U. S. 543 (15 Sup. Ct. 406: 39 L. Ed. 524) are applicable here:
“There can be no question of the good faith of the defendant. He went upon the land with the view of making it his home. * * That he failed was. not his fault. * *”
I am aware the plaintiff fixes the return to the land of his son as occurring after Hoke Smith’s decision, which it develops was in 1893; but, had some other witness than plaintiff made this assertion, it would, in view of the record, not receive serious notice. It would doubtless be classed with errors of that kind so common to witnesses, however- honest they may be, when testifying concerning matters involving so many complications of both law and facts — often mixed questions of law and fact — especially when, as in this case, the events extend over a period of 20. years. Shall it follow, then, that, merely because the witness is the plaintiff, and the plaintiff’s narrative is inconsistent with his interests, he must be bound by it regardless of its otherwise tested accuracy? Certainly *359not! True, a party to a proceeding is less likely than others to make assertions against his interests with reference to questions involved, but the fact that he may do so can only affect the weight to be given statements thus made, which, as a rule, would be construed more strictly against him than if made by another who may have no interest in the controversy. Statements, under such conditions, are not necessarily to be deemed conclusive, but, like any other evidence, are subject to contradiction. Nor does such an occurrence necessarily affect the credibility of a party to a proceeding to his prejudice. Indeed, circumstances may arise where it may show his determination to tell the truth at all hazards, even though it may work to his injury, and yet prove to be an error. It often happens that the memory of a witness is at fault to such an extent that, although at variance with his own interest, he will contradict well-established data, even to the extent, in some cases, of traversing a matter of record; and this, to me, appears to be an instance of that kind. Various steps were taken, and decisions rendered from time to time, concerning this property, by reason of which an error as to the particular decision, after which the filing was made, could easily have occurred — to say nothing of the fact that he may have confused his son’s filing with some other entry made at the time by others in the neighborhood. But whatever may have occasioned the assertion, it is manifest that the witness was in error in this respect, from the fact that J. A. Morrow made his final proof, and received the final receipt alluded to, in July, 1895, when, to entitle such proof to be made and received, it required five years’ previous residence. In view of the state of the record I think the mere reference by plaintiff, in fixing the time when the homestead filing was made, to the particular decision mentioned but a mere slip in memory, and, in face of the presumption developed by the record evidence adduced, should be *360disi’egarded; especially so in view of the fact, as stated, that the sufficiency of Morrow’s settlement to entitle him to make the final proof is not in any other manner questioned by the defense, either in the proceedings in this court, or throughout in any of the numerous steps taken and courses pursued, by and adverse to him, before the various land office departments of the government. The fact that he may have sold and left the property while claiming as a pre-emptor could, in the absence of an objection by the person to whom he sold, or of some one in privity with the purchaser, in no way affect his rights after returning and resuming possession thereof.
Nor do the views expressed in any way conflict with the rule announced in Love v. Flahive, 205 U. S. 195 (27 Sup. Ct. 486: 51 L. Ed. 768); Id., 206 U. S. 856 (27 Sup. Ct. 729: 51 L. Ed. 1092.) There the party seeking to set aside the patent, and to have the property conveyed to him, sold to the predecessor in interest of the one to whom the patent was issued, ip reference to which it was merely held, in effect, that, although the claimant at the time of making the sale had not filed, he, by reason of such sale, surrendered possession to the purchaser, through whom the patentee deraigned title, and was estopped to question the patentee’s right in and to the land patented, under a filing which, on the strength of the complainant’s sale and abandonment, had been made by such patentee, while in the case under consideration neither the purchaser, nor any one claiming title through him, questions plaintiff’s rights.
I, therefore, dissent from that part of the conclusion reached by the majority, which excepts the 154.10 acres described, and think the decree of the court below should be reversed, and one entered enjoining defendant from further proceeding with its action in ejectment.