Gilbert v. Thompson

By the Court

GtleillaN, Oh. J.

The act. of Congress, of 1854, under which Sioux half-breed scrip was issued, provides “ that no transfer or conveyance of any of said certificates or scrip, shall be valid.” It was the intention of Congress that the right to acquire public lands by means of this scrip, should be a personal right, in the one to whom the scrip issued, and not property in the sense of being assignable ; but no restraint is imposed upon the right of property in the land, after it is acquired by location of the scrip. In the scrip itself, the half-breed had nothing which he could transfer to another; but his title to the land, when perfected under it, was as absolute as though acquired in any other way. It follows that any attempt to transfer the scrip, directly or indirectly, would be of no effect as a transfer. The title to the scrip would remain in him, and the title to the land acquired by it would vest in him, just as though no such attempt had been made. Such attempt to transfer would not involve any moral turpitude, nor the breach of any legal duty, as is the case with an attempt to transfer a pre-emptive right. It would be simply ineffectual, because the scrip is not transferable. A power of attorney, so far as intended to operate as a transfer, would be of no avail; the right of the half breed in the scrip and land would remain the same ; it could not be made irrevocable, nor create any interest in the attorney. Should the attorney sell under it, he would be accountable to his principal, precisely as in the case of any power to sell; but a simple power to sell, executed by a half breed, is good till revoked, and would extend to land subsequently acquired by means of scrip, if such land came within its terms. ¥e think such a power could not be varied by parol proof that the parties had an intention not expressed in it, even to defeat the power, except on the same grounds as would admit such proof in other cases. The intent to transfer the scrip not being illegal, but only ineffectual, could not affect the power where not expressed in the samé instrument, or in one equal in degree, as evidence. Whether the power to sell would be upheld in an instrument, upon its face a transfer, the former being only incidental, we do not decide.

When the deed executed by the attorney was offered in evidence, the plaintiffs objected to it, on the grounds “ that it was not executed in form to admit to record ; that in form the deed was an absolute nullity, as it was not in the form required for conveyances of real estate.” From this neither the defendant nor the court below could know what precise objection was intended. Under it, the specific objection is made here, that the acknowledgment is defective, and that the land is described by employing initial letters to designate the subdivisions. The objection made below does not point out either of these objections. A party objecting to the introduction of evidence, must state his point so definitely, that the court may intelligently rule upon it, and the opposite party may, if the case will admit of it, remove the objection by other evidence. As there was no question of record notice, both these objections, if they had been well founded, might have been removed; that to the acknowledgment by common law proof of the execution, and that to the description, by proof of the sénse in which the parties read the initials. 1 Greenleaf Ev., (12 Ed.), Sec. 282, et seq.

The order appealed from is affirmed.

Case Details

Case Name: Gilbert v. Thompson

Court Name: Supreme Court of Minnesota

Date Published: Jul 15, 1869

Citation: 14 Minn. 544

Court Abbreviation: Minn.