Randall v. Kreiger

APPEAL from the Circuit Court for the District of Minnesota.

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 non-resident 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 conveyed with general warranty the land, in consideration of $3000, 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:

'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 $7000, 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., &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 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: