Cox v. Manvel

| Minn. | May 24, 1892

G-ilfillan, C. J.

Whether the soldier homesteader’s right to an additional entry given by section 2306 of the Revised Statutes of the United States be assignable or unassignable, whether it be, before location, in the nature of real estate or personal property, is immaterial in this case; for the evidence fails to show that either the right or the land secured by its exercise was ever assigned so as- to pass to any one other than the person to whom the right accrued. The right here involved accrued to plaintiff as the minor child of his father, a soldier homesteader. Diantha M. Alder was appointed his guardian by the county judge of Johnson county, Neb., .who made an order authorizing and directing her to employ some suitable, competent, and trustworthy person to select and locate such additional lands, and sell and dispose of them, (after they have been located,) and directing her to execute to such agent a power of attorney to sell and dispose of the lands. She could not delegate to another the power to. select and appoint such agent, and the paper signed and sealed by her, and claimed to be the power of attorney authorized by the order, was in blank as to the name of the attorney, so that when it-passed out of her hands it was of no effect. The blank was after-wards filled by some other person by inserting the name of the defendant Manvel. In selecting and naming him as the attorney the-guardian had no part, so that the paper was of no more validity after than it was before the name was inserted. There was then no authority in Manvel to convey the land.

If we are to treat the right to enter the additional lands as personal property, and the transaction as an attempt by the guardian to assign it as personal property, then we confront the order of the county judge who appointed the guardian, and who must be assumed to have had the direction and control of her in the discharge of her duties as guardian, which in effect prohibited her assigning the right, or doing anything with it except to cause the land to be selected and located under it, and then to be sold. The instrument was therefore equally void whether it was an attempt to appoint an attorney or to. assign the right to make the entry.

The plaintiff did not, by accepting the conveyance from the government, made upon the unauthorized entry by Manvel, ratify his unauthorized act in assuming to convey the land. Whether such entry should be regarded as sufficient to entitle plaintiff to a patent was a matter between him and the government alone. He might perhaps have asked to have the entry vacated, and to be permitted to. make a new one. As no one but he and the government had any interest to be affected by his consenting to receive the patent under the-location, no one could complain of his so doing.

There is no element of estoppel in the case such as there was in Pence v. Arbuckle, 92 Minn. 417. The guardian could not estop her ward by setting afloat the blank paper claimed as a power, nor could she affect him by the receipt of money in an unauthorized transaction. Those who deal with a guardian must, in order to hold the-ward, see to it that the guardian has authority to do the act.

(Opinion published 53 N.W. 373" court="Neb." date_filed="1892-10-26" href="https://app.midpage.ai/document/herbert-v-keck-6647958?utm_source=webapp" opinion_id="6647958">53 N. W. Rep. 373.)

■ Order reversed.