The sale of the certificate by John to Simpson Holloway supersedes the necessity of investigating the proceedings had in the district court as between them.
On the 9th day of Hovember, 1857, Mrs. Elizabеth Holloway, with her husband, the said Daniel Holloway, intervened in this cause, and claimed the certificate and location as her separate property, under a transfer made to her by John Holloway, in February, 1851.
The location under which she claims was made in September, 1844, (the regularity and validity of which we will not now determine;) and though the original petition was filed October, 1851, it must bе held that her rights were not involved in this suit before the date of her interven
We are of opiniоn that the suit was improperly brought in the name of Daniel Hollaway, as the agent and attorney in fact of John Holloway. Suits cannot be instituted in the name of the agent; they must be brought in the name of the principal in whom the right may be, with some exceptions, as, when the contract is made in the name of the agent, or he has some interest in the subject-matter of the suit. And we are satisfiеd that the exception to the petition should have been sustained on this ground. (Robson v. Tait,
The court, in substance, instructed the jury, that if the land located was within the limits of the Guerrero claim, and this suit was brought before the termination of the suit contesting the validity of that claim, her rights were not affected by a failure to have the survey, made on the location, and refused to instruct them that thе location became vacant under the provisions of the act of February 10, 1852. The act of February 10, 1852,-reads as follows, to wit: “All lands heretofore located by virtue of any genuine claim to land shall be surveyed within twelve months from the passage of this act, and all lands which may be hereafter located shall be surveyed within twelve months from the date of the location, or the said locations in every case shall be null and void, and the lands be subject to relocation and survey as other vacant and unappropriated lands.” [Paschal’s Dig., Art. 4568.]
To obviatе the effect of this act upon the location made in 1844, it is contended that the surveyor refused to survey the land because it conflicted with the Guerrero claim, then in litigation; and that it was nоt decided to.be invalid until the spring term of the district court, 1851, and the judgment was affirmed in the Supreme Court in 1853, and that these impediments to their rights, together with this suit,
From the decisions of this court, we are satisfied that the location of 1844, if not surveyed as directed in the act of February 10, 1852, became null and void on the 11th February, 1853, and that it will nоt support this action, (
In the case of Edwards v. James,
Says the court: “It is not believed to have been intended to embrace a case like the present,, where there were legal impediments to the survey, that could only be removed by an adjudication on the locator’s right to have the land selected, located, and surveyed.”
We dо not feel at liberty to extend this exception beyond the class of cases here designated, and we are not satisfied there has been sufficient diligence used in this case to plаce this location within the range of this exception. In the case cited, the surveyor, on demand, refused to make the survey, and thereupon the locator sued out a mandamus against him. All the rights of the locator and the old claimant were brought before the court, in order that the impediments to the survey might be investigated and removed by an adjudication; but if it be admitted that the rights of the real owner of this location were involved in this suit as at first filed, the proof does not show that the owner ever did, in fact, apply to the surveyor to survey the land. True, some person not namеd, a short time after the location, did make such an application to the deputy surveyor, and he refused to make the survey, for the reason of the conflict
There appears to be a want of diligence on the part of Mrs. E. Holloway in the use of the means given her by law to remove the supposed impediments to the enforcement of her rights under the location claimed by her too great to save her rights from the forfeiture under the said act of the legislature.
If it be admitted that the pending of the suit contesting the validity of the Guerrero claim furnished a sufficient excuse for not surveying the land under the location of 1844, it is admitted that this impediment was removed by thе decision of the district court in the spring of 1851, or, at furthest, by the Supreme Court decision affirming that of the district court in 1853. It has not been made to appear, by allegation or evidence, thаt any application was made thereafter to the surveyor to survey the land, nor that any other act was done to procure the survey. Mrs. Elizabeth Holloway appears never to have done anything to enforce her rights, or to have them respected, until her intervention in this suit, some four years after the supposed impediment arising from the Guerrero claim 'was removed. From the foregoing reflections, we believe the district court erred in giving the instruction complained of, and in refusing to give the one referred to, -as asked by the defendant below.
The issuе made by Mrs. Holloway was, that the certificate and location were her separate property, and in support of it she produced in evidence the transfer from John Hollоway to her, dated February, 1851, which purported
The husband can sue for the sepаrate property of his wife alone or with her, and if he sues for it in his own name, and evidence showing it to be her separate property be introduced without objection, it will be held sufficient to support the issue, because he has the right to the possession and management of it, and therefore a limited interest in it. (
It might be contended, that the averment of Daniel Holloway in the petition, that the certificate and location were the separate property of his wife, should be taken as sufficient evidence of the fact. As between them, perhaps it might be held sufficient; but when the rights of third parties are involved and affеcted by that fact, better evidence must be adduced.
In the original petition, her husband, Daniel Holloway, stated, under oath, that the certificate was the property of John Holloway, for whose benefit he sued; and the fact may be, that the defendant, Simpson Holloway, relying upon the truth of this averment in good faith and without
The judgment below is reversed, and cause remanded for further proceedings, in conformity with this opinion.
Reversed and remanded.
[Donley, J., having been of counsel, did not sit in this case.]