Love v. Flahive

Background

In 1882 a man named Love settled on and occupied an unsurveyed public tract intending to claim it as a homestead. He later sold the property in September 1883 to James Rundell while the land remained unsurveyed. The land was not officially surveyed until 1888, and Love did not file an application in the Land Office until January 2, 1889. The Land Department awarded the patent to a later holder, Mrs. Flahive, and Love sought reconsideration, prompting this opinion and a petition for rehearing.

Reasoning

The central question was whether Love’s earlier sale destroyed his later right to file for the land while he remained in possession. The Court explained that selling the land before filing an entry is effectively a relinquishment of the right to claim it as a homestead. The Department properly treated a seller who had conveyed the tract as having no further claim. Simply staying in possession after a sale does not create a new claim against the purchaser or the purchaser’s transferee. For those reasons the Court found the Secretary’s decision correct and sustained the patent award to Mrs. Flahive, and it denied the petition for rehearing.

Real world impact

The decision means that someone who sells unsurveyed public land before filing an application gives up the right to later claim it, even if they continue to live on the property. The Land Office may refuse later entries from prior sellers and enforce patents in favor of buyers or their transferees, ending the seller’s claim in this case.