This was a bill in equity brought by the appellants, who were plaintiffs in the court below, and who will be hereafter referred to as “plaintiffs,” against the Santa Eé Pacific Railroad Company and John E. Eundrigan, defendants.
The railroad company filed a disclaimer, and the case proceeded against the appellee alone, who will be hereafter referred to as the “defendant.”
The purpose of the bill as disclosed by the prayer was to have the court adjudge: (1) That the plaintiffs were the owners of the land described in the bill and entitled to the legal title thereto; (2) that the defendant be declared to hold in trust for the plaintiffs whatever interest he had in the legal title to the land; (3) that the defendant be commanded and compelled to convey by suitable conveyance to the plaintiffs all such right, title, or interest as he had in the estate.
It appears from the record that John E- C. Robinson, one of the plaintiffs, as assignee of Janies Carroll, on the 24th of January, 1901, applied at the United States Rand Office at Cass Lake, Minn., to make a soldier’s additional homestead filing upon the southwest quarter of the southeast quarter of section 13, township 55 north, range 26 west of the Fourth principal meridian. The application was received (but not allowed as an entry), a notation being made upon the records that it was an application, and the papers were forwarded to the General Land Office at Washington for the purpose of examination in connection with the official records, as required by the rules of the Rand Department.
On the 23d of March, 1904, the Commissioner of the General Rand Office held for rejection the application made by Robinson, as assignee of Carroll, and on the 28th of January, 1905, he directed the register and receiver at Cass Rake to order a hearing, and directed that at said hearing Robinson be allowed to show, if he could, the validity of the Carroll right.
On the. 22d of May, 1905, a hearing was ordered for the 29th of June, and a notice was served upon Robinson to appear and offer any evidence he might have, tending to establish the validity of the Carroll *232right. On the date fixed for the hearing, Special Agent S. J. Colter appeared before the register and receiver, representing the government; but Robin'son failed to appear, either in person or by counsel, and offered no evidence whatever, the only evidence offered at the hearing being the evidence offered by Special Agent Colter.
The register and receiver found that the assignor, James Carroll, has not performed military service in the army, navy, or marine corps of the United States during the War of the Rebellion, and recommended the rejection of Robinson’s application. This decision of the register and receiver bears date July 15, 1905.
On the 27th of July, 1905, Robinson filed in the local land office at Cass Lake what he called an “appeal,” but which in fact was nothing-more than a petition for an extension of time within which to make another application. We say it was not an appeal because he takes no exception whatever to the ruling of the register and receiver. On the contrary, in his appeal, or petition, he says:
“Appellant Is deeply sensible and appreciates tlie seriousness of defaulting at said hearing, and does not ask that the case be reopened. This appeal is not taken for the purpose of hindering or delaying the adjustment of long drawn out matters, but with a hope, and urgent request, that under the circumstances appellant be given 30 days within which to rescrip said above mentioned tract.”
On the 29th of August, 1905, J. H. Fimple, Acting Commissioner of the General Land Office, affirmed the decision of the register and receiver, rejected Robinson’s application, declared the case closed, and directed the register and receiver to so note upon their records. He further directed them to notify Robinson that he would be allowed 30 days from receipt of notice in which to filé a proper substitute for the rejected application.
On the 4th of October, 1905, Robinson, as assignee of one Justus F. Heath, filed a second additional homestead entry úpon the land, and this application, like the first, was forwarded to the General Land. Office at Washington for examination and approval. February 15, 1906, the commissioner having found that Heath was entitled to a soldier’s additional homestead right for 80 acres under section 2306,. Rev. St. (U. S. Comp. St. 1901, p. 1415), and that Robinson had properly acquired, by assignment, the right to 40 acres thereunder, directed the register and receiver at Cass Lake, on payment of the legal fee and commissions, to allow the entry in the name of Robinson as as-signee of Heath and to issue the original and final receipts and final certificate. March 2, 1906, Robinson paid the fees and commissions, and on the same date the final certificate was issued to him.
July 11, 1905, the Santa Fé Pacific Railroad Company applied to select the same land under Act June 4, 1897, c. 2, 30 Stat. 36 (U. S. Comp. St. 1901, p. 1541). The application was received by the local land office subject to Robinson’s soldier’s additional application under the James Carroll assignment. This application was made 18 days after the hearing at which Robinson failed to appear, 4 days prior to the decision by the register and receiver therein, and 12 days before Robinson filed his application for an extension of time within which to rescrip the land.
*233At the time the final certificate to Robinson was issued by the local land officers, they rejected the application of the railroad company. Upon receiving- notice thereof the railroad company appealed. June 14, 1901, tlie Commissioner of the General Land Office reversed the landings of the register and receiver and held Robinson’s entry and final certificate for cancellation. Robinson then appealed to the Secretary of the Interior, where tlie decision of the commissioner' was affirmed. A petition for a rehearing was filed by Finnegan, a grantee of Robinson’s, but was denied by the Secretary. On July 20, 1908, a patent for the laud in controversy was issued to the Santa Fé Pacific Railroad Company, and on the 18th day of November, 1908, the Santa Fé Pacific Railroad Company sold and conveyed the land to the defendant, John E. Lundrigan.
The validity of the application made by the Santa Fé Pacific Railroad Company is not questioned, and the record shows that it was pending and had been pending almost three months at the time Robinson’s application under the Heath soldier’s additional homestead right was filed. Neither is it anywhere insisted by the plaintiffs that the Carroll soldier’s additional right was ever at any time a valid right; indeed, its invalidity was fully recognized by Robinson, if not in words certainly by his acts. He did not appear at the hearing after due notice, neither did he apply to the local land officers to have the hearing postponed, if, for the reason stated by him, he could not attend at the time fixed for the hearing, nor did he make any effort whatever to sustain the validity of the Carroll right, and, in his petition to the commissioner for an extension of time “within which to rescrip” the land, expressly states that he “does not ask that the case be reopened,” thus recognizing, as the department held, that it was absolutely void.
The question is thus presented whether or not a person who applies to enter public land with a void soldier’s additional right is entitled, after his invalid application has been rejected, to a grant of additional time within which to obtain another right with which to enter the land where a valid application for the land has been received, and is pending, at the time the holder of the invalid right makes his application for additional time.
It is to he observed, in considering this question, that an application under soldier's additional scrip is not an entry of the land, but merely an application to enter. In Ex parte John C. Ferguson (not reported), where the facts were identical with the facts in the case at bar, the secretary said:
‘‘Since tlie case of Stewart v. Peterson, 28 Land Dec. Dep. Int. 515, the department has held that any application presented during the existence of an entry of record must be rejected 'outright, and that no rights can he recognized as having been acquired by the presentation of an applies lion to enter at such time. But the case at bar is different. There was no entry of the tract described, and there is none now. MeBean presented an application to enter. It was forwarded to your office for consideration and there rejected. His application was simply tentative, and the most that it can be held to have done, as has been often decided, was to protect any rights that he might have as against other applicants, or, in the words used in the books, it was equivalent to an entry only so far as his rights were concerned. Therefore, there is no good reason apparent why the application of Ferguson should not have been held to await that of MeBean. As it appears that the *234latter had no rights, he consequently took nothing by his application, and his appeal from the decision rejecting his application, of course, placed him, in no better position. This being so, that application should be no bar to the allowance of the application of Ferguson.”
The Land Office Circular in force at the time this application was made provides that an additional entry not accompanied by a certificate of right from the General Land Office (and this entry was in that form) must be forwarded 'by the local office to the General Land Office for consideration and for instructions relative to allowing the entry. It further provides that proper notations should be made by the local officers on their records, showing the pendency of the application and the consequent segregation of the land, the legal effect of which is to give the applicant the preference right to enter the land in case the additional homestead is found to be valid. No fees or commissions are required or paid at the time the application is filed. If, after examination by the General Land Office, the soldier’s additional application is found to be valid, the register and receiver are directed to allow the entry and to collect the fees and commissions as in cases of original entry. When this is done the receiver issues his receipt therefor and the register his final certificate.
There is a material difference between soldier’s additional homestead. scrip and military bounty land warrants, state school indemnity land selections, Sioux half-breed scrip, and other land scrip of like character, in that, the several kinds of scrip last- mentioned are examined by the department and their validity certified prior to location. The location of the scrip, therefore, constitutes an entry, and the rules governing such scrip are not applicable to soldier’s additional scrip for the reason that in the one case filing the scrip in the local land office constitutes an entry, while, in the other, filing the scrip in the local land office constitutes an application only and cannot become an entry until specially authorized by the Commissioner of the General Land Office. The cases, therefore, called to our attention at the argument, and in the brief of plaintiff, involving military bounty land warrants and scrip of like character, are not in point.
It is not insisted, and indeed could not be, that the statute itself authorizes an extension of time in case of a void application. Section 2306 of the Revised Statutes, by which the soldier’s additional right is created, reads as follows:
“Every person entitled under the provisions of section 2304 to enter a homestead who may have heretofore entered under the homestead laws, -a quantity of land less than one hundred sixty acres shall be permitted to enter so much land as, when added to the quantity previously entered, shall not exceed one hundred sixty acres.”
It is to be noted that this right is granted by the statute only to persons entitled under the provisions of section 2304 (page 1413), to enter a homestead, and the department found, upon the evidence submitted, that’James Carroll, Robinson’s assignor, had not rendered military service and was not entitled to exercise the right, and as Robinson, the assignee, acquired and could acquire only such rights as his assignor had, be got nothing by his purchase and no right of entry could be based thereon.
*235It is, however, insisted by the plaintiffs that there was a rule and practice prevailing in the department which authorized the extension of time in such cases, and they direct our attention to the case of Robeson T. White, 30 Rand Dec. Dep. Iut. 6.1, and Land Office Circular dated February 18, 1890, in support of their contention.
In the case of Robeson T. White, White initiated a contest against a previous entry by McCrimmon and was successful; McCrimmon's entry being canceled October 11, 1898. On the same day White, assignee of Winifred Carver, widow of George W. Carver, made application to make additional homestead entry for the land, under section 2306 of the Revised Statutes. White had a preference right to make the entry under section 2 of Act May 14, 1880, c. 89, 21 Stat. 140 (U. S. Comp. St. 1901, p. 1392), as successful contestant against a former entry. September 9, 1899, William Moran filed a protest against the application, which was rejected, and in October, 1899, White filed a second additional homestead application as assignee of Jacob Pugh on the same land.
As a reason for offering the Pugh additional application, White, in his affidavit, stated:
“Affiant was advised by counsel that there seemed to be an infirmity in The Carver right. ⅞ ⅜ ⅜ Desiring to retain and assure his right to said land and the exercise of his preference right of entry thereon, ⅛ * * and to evidence his good faith. $ * * he procured fixe soldier’s additional homestead certificate of Jacob Pugh and filed saxne. ⅞ ⅛ * with an an-plication to locate the same on the land described, to (he end. and to no other, Thar, should an incurable infirmity be found in said Carver right, the said Pugh certificate might be taken and used in whole or in pari, as the consideration for the exercise of liis preference right. Tie had no purpose, in so filing the said Pugh certificate, of abandoning his first application nor any right obtained thereby: on the contrary, he did it for the express purpose oí retaining and maintaining liis preference right to the entry-”
Upon examination it was found that the first application under the Carver right was a valid one, and the department properly held that by making the second application under the Pugh right he did not waive any right acquired by the first application under the Carver right. In disposing of the question, the secretary said:
“To constitute a waiver of right, one must, with full knowledge of his right, do or forbear doing something inconsistent with the right and of his intent *o rely upon it.” Bennecke v. Connecticut Mutual Life Insurance Company, 105 U. S. 355, 26 L. Ed. 990: Pence v. Langdon, 99 U. S. 578, 25 L. Ed. 420.
The distinction between that case and the case at bar is at once apparent. The question of the right to substitute a valid for an invalid right was not involved in the White Case. The statute gave him a preference right as the successful contestant, and liis offer to pay for the land by the tender of soldier’s additional scrip was merely m aid of that right: moreover, the scrip which he tendered was found upon examination to be valid.
Neither do we think the circular of February 18, 1890, tends to support the contention of counsel. It makes tio reference whatever to the right of substitution, and the reason therefor is at once apparent when we examine Act March 3, .1893, c. 208, 27 Stat 593 (U. S. Comp. St. 1901, p. 1416), which provides:
*236“That where soldier’s additional homestead entries have been made or initiated upon a certificate of the Commissioner of the General Land Office of the right to make such entry, and there is no adverse claimant, and said certificate is found erroneous or invalid for any cause, the purchaser thereunder, on making proof of such purchase, may perfect his title by payment of the government price for -the land.”
It will be noticed that the statute confines the right to purchase the land to cases where homestead entries have been made or initiated upon the certificate of the Commissioner of the General Land Office of the right to make such entry, and then only in cases where there is no adverse claimant. Iii view of this statute, the department had no power to malee a rulé which would cut off the right of an adverse claimant, and after diligent search we have been unable to find a single case where it has attempted to do so. Numerous cases may be found where the department has permitted the substitution of valid for invalid rights; but on examination of these cases it will be found that the permission was granted upon the express condition that they did not conflict with adverse rights already pending. There are also cases where there was a valid báse — that is, where the assignor, the soldier, had rendered military service and was entitled to soldier’s additional scrip, but by reason of some defect therein which might be cured, he or his assignee was allowed to make the correction and the entry sustained — but that is not this case. Here there was no base upon which to establish an entry. Carroll, the alleged soldier, had never performed military service as required by the laws of the United States to entitle him to a soldier’s additional homestead entry. His right being void, Robinson got nothing by the assignment, and the commissioner had no authority to give him time within which to substitute a valid right if it conflicted, as it did in this case, with an adverse claim, for the statute provides that this can be done, even upon the commissioner’s certificate, only where there is no adverse claimant. The commissioner’s letter must be read in the light of the legislation of Congress, and when so read there is nothing found therein inconsistent with the statute. In his letter to the register and receiver he says:
“Your said decision is accordingly affirmed, and tbe application is rejected and tbe ease closed. You will so note on your records. You will also notify tbe applicant that be will be allowed thirty days from notice hereof in which to file a proper substitute for tbe right rejected.”
True he did not insert the words if “there is no adverse claimant,” but that was unnecessary in view of the statutes and the decisions of the General Land Office. His letter, therefore, was merely authority for the local land officers to receive the second entry under the Heath right in the event that there was no adverse claim. This was the extent of his power, and it is not to be presumed that he intended to go beyond it. In other words, the fact that Robinson had filed a void application was held not to deprive him of the right to file a new and valid application if 'the land remained open and there was no adverse claimant.
In the case of the Northern Pacific Railway Company v. Charles P. Maginnis, not reported, the Secretary of the Interior said:
*237“Tn the absence of an intervening application, there can be no question but that the substitution of another application might be allowed at any time; but it cannot be assumed that with a presentation of a soldier’s additional application there is carried a right, in the event the application fails, to substitute another. The substituted application is in reality a new application, and no rights are gained thereunder because of any prior application. An intervening application clearly bars the right of substitution.”
Our attention is directed to the case of the Germania Iron Company v. James et al., 89 Fed. 811, 32 C. C. A. 348, wherein this court, speaking through Judge Sanborn, said:
“An established rule of practice of the Land Department, that after a decision by the secretary has been made, canceling an entry of public land, no subsequent entry of such lands can be allowed until the decision has been officially communicated to the land officers, and a notation of the cancellation made on their plats and records.”
We have no inclination to depart from or to modify in any degree the rule announced in that case, but the court was there dealing with a very different question from the question here presented. The case was before the court upon a demurrer to the bilí. The bill alleged that on February 18, 1889, the land in question had been segregated from the public domain and appropriated to private use by the location of Sioux half-breed scrip upon it. A contest had arisen between the locator of the scrip and one who subsequently applied to pre-empt the land, had been heard by the local land officers at Duluth, Minn., and was pending on appeal before the Secretary of the Interior. The secretary decided that the location of the scrip was invalid, that the attempted pre-emption was fraudulent, and that the land in question was open to disposal under the public land laws of the United States. The decision of the Secretary of the Interior was received by the local land officers on the evening of February 22, 1889, and on the morning of February 23d, before the office was opened for business, cancellation of the entry of this land under the Sioux scrip was noted on the books and plats of the local land office. At 9 o’clock in the forenoon of that day the office opened, and Hartman was the first person who applied to enter the land after the office was opened, and this court held that Hartman was entitled to the land; he being the first in time to apply after a notation of the cancellation had been made upon the plats and records of the local land office.
There was a rule then in force in the Department of the Interior, recognized by a long line of decisions by the department officers, providing and declaring that no decision of the Secretary of the Interior or the Commissioner of the General Hand Office canceling an entry or appropriation of public lands should take effect as a release of such lands from such entry or appropriation, or as a restoration thereof to the public domain, open to entry or disposal under the public land laws, until such decision had been officially communicated to the local land officers of the district in which the lands described were contained; and, until notations of such cancellation had been made upon the plats or other records of the local land office, no application or entry could be received. After that had been done the first in line secured the right.
*238It will be ’observed that that case, and the cases cited in support of it, were all cases where entry had been made at the local land office. In the case before us no entry was made, nothing but a mere application to enter had been filed, and in such cases junior applications are received subject to any right which may be found to exist under the first application. As was said by the secretary in an appeal from the commissioner, in the case of Frederick L. Gilbert et al., 35 Land Dec. Dep. Int. 422-424, where a soldier’s additional application was involved:
“The local officers being without authority to act upon them, they are permitted to accept them when presented prior to the allowance of entry by your office, and all rights thereunder attach in the order of the filing of the respective applications in the local office. It would therefore be manifestly inequitable in those cases where applications were properly filed and accepted to permit a substitution of rights to the prejudice of the rights of applicants attaching subsequently to the filing of the original application but prior to the filing of the application to substitute another right in lieu thereof, * * * where each of the respective rights asserted is based upon naked applications independent of any superior or controlling equity.”
•It was further said in the case:
“But after entry has been allowed by your office, until the same is canceled no rights are gained by the filing of other applications therefor, and the local officers should refuse to accept them.”
The case just cited is a clear statement of the distinction recognized by the Department of the Interior between a soldier’s additional application and the entry itself.
The conclusion reached is that' the decree of the Circuit Court for the District of Minnesota was right, and it is affirmed.