57 F. 956 | U.S. Circuit Court for the District of Minnesota | 1893
(after stating the facts.) Conceding that the instrument executed by Louisa Dryer to Boggs gives, not
“Services already rendered during the war are the consideration. The homestead duty of occupation or improvement has already been performed. It amounts simply to this: In view of what has been done, congress makes this gift. It places no restriction on the donee, but leaves him to use the gift as he sees fit.”
I think the amendment of March 3, 1873, which is section 2306, Rev. St. U. S., granted the absolute right to the extra land, to he taken, not necessarily contiguous to the original homestead, nor subject, to the restrictions of the homestead act, and was tantamount to the right formerly held by the holder of a land warrant. Nothing-had to he done to perfect it, and it was therefore the subject of sale. It seems to me that to ingraft the restrictions in the homestead act of 1862, as modified by the first section of the act of 1872, upon section 2306, would tend to defeat the legislative will, for the terms of that section are plain, and the rule established in such cases is that, where congress enacts a plain provision without limitation, no limitation can he imposed by the court.
Counsel for defendant assert that the power of attorney to Boggs is in contravention of the laws of the United States, and is against public policy. It is difficult to see how that can be, in the absence of restrictive or prohibitory legislation. An individual owning property, or a right to property, necessarily has the power of alienation; and public policy rather favors the theory that a man may do what he chooses with his own, unhampered by restrictions or hindrances. As said by the supreme court of Wis* cousin in Knight v. Leary, 54 Wis. 459, 11 N. W. Rep. 600:
“It is sufficient to say that the law does not favor restraints upon alienation, and nothing short of a positive provision to that effect will justify the court in holding that a statute imposes such restraints.”
I find nothing in the case of Anderson v. Carkins, 135 U. S. 483, 10 Sup. Ct. Rep. 905, cited by counsel for defendant, conflicting with the view taken by me in this ease. There the question arose
Entertaining these views, without any further discussion of the question, I am of the opinion that the complainants are entitled to a decree. Let an order be entered accordingly.
Mem. The several cases of Chippewa Company v. Amos L. Warner, Andreas M. Rutan, Herbert W. Coffin, Charles W. Piper, and Alfred F. Webster, defendants, are controlled by this decision, and a decree in each of those cases will be entered for the complainant.