Montague v. McCarroll

Minee, J. (after stating the facts): The question presented is whether the power of attorney could be and was revoked by Hankammer. In Montague v. McCarroll, 10 Utah 22, this court held that the right given by section 2306, Rev. St. U. S., to a soldier who had theretofore entered under the homestead laws less than 160 acres of land, to enter enough more to make up 160 acres, is assignable before entry,, there being no restriction in the homestead law. In Knight v. Leary, 54 Wis. 459, it is held that a conveyance before patent, under a power similar to that in question in this case, of land entered under section 2306, was sufficient to convey the title, and was valid against the assignor, his heirs and assigns. In Barnes v. Poirier, 12 C. C. A. 9, the court sustained the same doctrine, holding a power of attorney made by a soldier similar to the- one in this case was an assignment [323] of bis right before entry, and that there was nothing in the-statute prohibiting such assignment. In Webster v. Luther, 163 U. S. 331, the supreme court held to the same doctrine, quoting with approval the decision of Judge. Sanborn in the case of Barnes v. Poirier, 12 C. C. A. 9, in which Judge Sanborn said: “The beneficiary was left free to select this additional land from any portion of the vast public domain described in the act, and free to apply it to any beneficial use that he chose. It was an unfettered gift, in the nature of compensation for past services. It vested a property right in the donee. The presumption is that congress intended to make this right as valuable as possible. Its real value was measured by the price that could be obtained by its sale. The assignment before entry of the right to this additional land, granted by section 2306, Eev. St., contravenes no public policy of the nation, violates no statute, and is valid as against the assignor, his heirs and assigns.” Adolph Hankammer, owning the right to enter land under section 2306, Eev. St., made an irrevocable power of attorney to Hemingray to enter upon and take possession of the land in question, and in consideration of five dollars, paid by the attorney, he was irrevocably vested with power to grant, bargain, sell, lease, convey, and confirm the same 'to the purchaser, and deliver a deed of conveyance thereof. Hankammer forever renounced all right in, and to revoke, any of said powers, or to appoint any other person to execute the same, and forever renounced all right on his part to do what the attorney was authorized to do, and released to the attorney all claims to any of the proceeds of sale, and ratified the acts of the attorney as absolute, both in conveying and retaining the proceeds of the sale of the land. This power of attorney not only carried with it an assignment of the interest of [324] Hankammer in the land to Hemingray, but vested in Mm the legal right to convey the title. It was a power coupled with an interest. It was valid as against Hankammer, his heirs, assigns, and grantees. The proceeds of the sale of the land were vested in the attorney, and renounced by the principal. In consideration of five dollars, paid to Hankammer by Hemingray, Hankammer expressly renounced not only the proceeds of the sale of the land, but all power and authority over the property, expressly confirming what should be done by the attorney, and made the act irrevocable. This power was irrevocably vested in the attorney until exercised. The power was exercised when the conveyance was made to the plaintiff. By that act and deed all right, title, and interest in the property, was vested in Montague. The conveyance by Hankammer to the defendant’s predecessor in interest, as well as the attempted -revocation of the power of attorney to Hemingray, were inoperative and ineffectual either to pass the title or revoke the power. Hankammer had parted with his interest before he executed the deed to Ryan, through whom the defendant obtained title, and he had no power to revoke the authority embraced in the power of attorney. While a power of attorney, by its terms, may be expressly declared to be irrevocable, yet if the agent has no interest in its execution, and there is no valid consideration for it, it is treated as a mere nude pact, and is deemed in law to be revocable, upon the general principle that he alone who has an interest in the execution of an act is also entitled to control it. But, where the power is coupled with an interest, or where it is given for a valuable consideration, unless there is an express stipulation that it shall be revocable, it is from its character, in contemplation of law, irrevocable, whether terms expressly [325] making it so are expressed in it or not. In this case the power became a part of the contract, coupled with a valid consideration. It therefore became irrevocable, and the attempted revocation, as well as the deeds to those through whom defendant derived his title, are wholly insufficient to vest any title in the defendant. Mechem, Ag. §§ 205, 206; Story, Ag. § 477; Hunt v. Rousmanier’s Adm’rs, 8 Wheat. 173; Barnes v. Poirier, 12 C. C. A. 9; Webster v. Luther, 163 U. S. 331. The court below held correctly that the legal title to the property was vested in the plaintiff. This conclusion being reached, it is unnecessary to discuss any other errors. The judgment of the district court is affirmed, with costs. Bartoh, J., and Hiles, District Judge, concur.