William R. Day

“ But the position of a bona fide purchaser is not to be assumed from the allegations of the complaint, which do no more than state the several transfers, without any allegation showing affirmatively that the defendants are bona fide purchasers for value, in which event only could this defense be successfully made by demurrer to the complaint. Bona fide purchase is an affirmative defense, which the grantee must set up in order to defeat the right of the railroad company to have a trust declared in the lands in question, if the bill is otherwise sufficient for that purpose. ”

“ It is also averred that the decisions of the Commissioner of the General Land Office and the Secretary of the Interior, and the cancelation of the railway company's selection, were wrongfully and erroneously made through a mistake of law, in this, that it was in and by said decisions held that the settlement and residence of Carter upon a tract of land situated one fourth of a mile distant from the land sought to be entered by him was constructively, and within the meaning of the homestead law of the United States, a settlement upon the land last mentioned. ”

“ When the land was surveyed, his house was found to be 200 feet distant from the line of the homestead, while his garden and spring, as well as some out-buildings, were on the homestead tract. He cultivated the homestead tract, and shortly after his homestead entry built a house upon the homestead tract, residing since his entry thereon one night each month, hoping thus to establish his residence. ”