Randall v. Kreiger
90 U.S. 137

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U.S. Supreme Court

Randall v. Kreiger, 90 U.S. 23 Wall. 137 137 (1874)

Randall v. Kreiger

90 U.S. (23 Wall.) 137

Syllabus

A. and wife, residents of the State of New York, executed a power of attorney to B. to sell lands in Minnesota Territory of which A., the husband, was seized. The power was executed and acknowledged by both parties, the wife undergoing such separate examination as by the laws of New York makes valid the execution of deeds by a feme covert. At the time when this power of attorney was given, there was no law of the territory authorizing such an instrument to be executed by the wife or the attorney

Page 90 U. S. 138

to convey under it. B., professing to act for the two parties, sold and conveyed a piece of the land, then worth $3,000, with general warranty, to C. for that sum, and A. received the money. The Legislature of Minnesota subsequently passed an act by which it was enacted that

"All deeds of conveyance of any lands in the territory, whether heretofore or hereafter made, under a joint power of attorney from the husband and wife, shall be as binding and have the same effect as if made by the original parties."

The husband and wife afterwards revoked the power. The husband died leaving a large estate composed entirely of personalty, the whole of which he gave to his wife. The wife now brought suit for dower in the land sold by B. as attorney for her husband and herself. Held that the power of attorney was validated by the curative act, which the court, adverting to the fact that the husband had received the purchase money for the tract, and that it had become part of his estate, and that the whole of it on his death passed to the wife, declares had a strong natural equity at its root, and accomplished that which a court of equity would have failed to decree against the wife, only because it would be prevented by the unbending law as to feme coverts in such cases.

Mrs. Sarah Randall, whose husband, John Randall, had been seized in fee during their marriage of a piece of land in Minnesota, brought suit, her husband being now dead, to have dower in the land.

The case was thus:

In May, 1849, the said John Randall, being seized as above said in fee of the land, he and his wife, then, as always before and afterwards, resident in the State of New York, executed in the form proper to pass a feme covert's interest in lands in that state, a power of attorney to a person in Minnesota, by which the latter was authorized to sell and convey the land in question, as also other tracts. The power was duly recorded in Minnesota. At the time when this power was given it seemed that there was no mode prescribed by statute in Minnesota by which a nonresident feme covert could execute a power under seal to pass her interest in real estate.

In January, 1855, there being still apparently no statute in Minnesota of the sort just mentioned, the attorney, professing to act in behalf of Randall and his wife, sold and

Page 90 U. S. 139

conveyed with general warranty the land, in consideration of $3,000, to one Kreiger. The deed to Kreiger was in conformity to the local law of Minnesota, and the sum for which he purchased the land -- one apparently fair -- was paid to Randall, the husband.

On the 24th of February, 1857, the Legislature of Minnesota, then still a Territory of the United States, passed an act in these words: [Footnote 1]

"A husband and wife may convey by their lawful agent or attorney any estate or interest in any lands, situate in this territory, and all deeds of conveyance of any such lands, whether heretofore or hereafter made, under a joint power of attorney from the husband and wife, shall be as binding and have the same effect as if made and executed by the original parties."

In May, 1859, Randall and his wife by an instrument duly executed revoked the power of attorney made in 1849. Randall himself soon afterwards died, leaving to his wife his entire estate; the same consisting wholly of personalty, and being estimated as worth between $100,000 and $200,000. She had already received of it more than $50,000.

The value of the property now was $7,000, independently of improvements put upon it after the conveyance.

The claim of the widow was resisted on several grounds, among them that any defect in her acknowledgment had been remedied by the curative act of 1857; that the purchase money having been paid to her husband, and having passed to and been accepted by her, she was estopped while still holding it to claim dower in addition; that she had elected to take the provision made by her husband's will, and which was inconsistent with the claim to dower now set up &c.

But the only question considered by the court was the one whether the case fell within the curative part of the above-quoted act of 1857, the concluding portion which enacts that all deeds of conveyance in the territory made prior to the passage of the act under a joint power of attorney, from

Page 90 U. S. 140

the husband and wife, shall be as binding and have the same effect as if made by the original party.

The court below (Dillon, J.), said:

"I am of opinion that the case falls within the curative or remedial provisions of the Act of 1857, and that this act, having been passed before the right to dower became consummated by the death of the husband, is a valid exercise of legislative power."

"Until the death of the husband, the right to dower is inchoate and contingent. It becomes consummate only upon that event. In my opinion, the better view is that while the right remains inchoate, it is, as respects the wife under, the absolute control of the legislature, which may, by general enactments, change, abridge, or even destroy it, as its judgment may dictate. [Footnote 2] 'So,' says Wright, C.J., in Lucas v. Sawyer, just cited,"

"the legislature may declare what acts of the wife shall amount to a relinquishment of her right of dower, or that her deed shall be effectual to bar the same."

Again, he says:

"In measuring her rights, we look to the law in force at the time of the husband's death, for it is this event which ripens or makes consummate the prior right which, so long as it rested upon the marriage and seizure, was inchoate only. If there was no law in force at that time giving her the right, then it is extinguished. She cannot take under a law repealed prior to that time, and taking a law then existing, she must take it with its restrictions and limitations."

"It was competent, therefore, for the legislature to say as respects all inchoate rights of dower, as it did say by the Act of 1857, that deeds executed under a joint power of attorney from the husband and wife 'shall be binding,' and if binding, the claim of the wife here to dower is barred, for she joined in the power of attorney under which the deed was made."

"Of the constitutionality of the enactment there remains no question after the repeated decisions of the Supreme Court of the United States. [Footnote 3]"

Judgment being entered on this view, the widow brought the case here on appeal.

Page 90 U. S. 146

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