79 U.S. 358 - Smith v. Sheeley

ERROR to the Circuit Court for the District of Nebraska; the case being thus:

In February, 1857, Mitchell being an occupant of part of a lot in the now city of Omaha—a site which at that time was still part of the public lands—gave to Redick a power of attorney to 'sell and convey' it. The instrument, after this grant of power, went on:

'And the said Redick is hereby authorized and empowered to sell and convey such interest as I have in the said lots of land, and such title as I may have to the same, and no other or better title. And it is hereby understood, and these presents are upon this express consideration, that I shall not hold myself personally liable or responsible for the acts of my said attorney in conveying any of the aforesaid lots beyond quit-claiming whatever titles I have in said premises, without recourse on me, and to that extent and that only.'

In the following March the mayor of Omaha, being empowered by the Territorial legislature of the Territory, and availing himself of the powers given to him under what is known as the Town Site Act of Congress, of May 23d, 1844, 'for the relief of the citizens of towns upon lands of the United States,' paid a certain sum into the Treasury of the United States and got a grant by patent of 138 acres of the public land, where the town of Omaha now stands, 'in trust for the several use and benefit of the occupants of land it the city of Omaha, according to their respective interests.' The lot which Mitchell had authorized Redick to convey was embraced in this grant; and in April, 1857, the mayor, reciting the patent to him in trust, as already stated, for the occupants of lands in Omaha, conveyed the lot to Mitchell.

Redick, now, May, 1857, under his old power of attorney, made before the issue of the patent to the mayor, or the deed of the mayor to Mitchell, made a deed of 'quit-claim' of the lot in consideration of $1175, which he received, to the 'Nehama Valley Bank.' This 'bank' was one which the Territorial legislature of Nebraska, in February, 1857, had passed an act to incorporate. The terms of the charter gave it 'power to issue bills, deal in exchange, and to buy and possess property of every kind.' Congress, however, as long ago as 1836, had passed an act* providing——

'That no act of the Territorial legislature of any of the Territories of the United States, incorporating any bank or any institution with banking powers or privileges, hereafter to be passed, shall have any force or effect whatever, until approved and confirmed by Congress.'

The act of the Nebraska legislature never was approved or confirmed by Congress.

In this condition of things Mitchell, in May, 1863, in consideration of $1, as appeared by the instrument, made a deed of quit-claim of the same lot to one Smith, the lot being then worth $2000, and under that title Smith brought ejectment in the court below. Judgment being given against him, he brought the ease here on error.

Mr. J. M. Woolworth, for the plaintiff in error:

1. The authority to Redick limited, in express terms, his power to convey such title as Mitchell at the time of making the power had. Mitchell at that time had no title to the lot. He occupied it only. This uncertain and shadowy right he authorized Redick to convey, and no other.

2. The charter of the so-called 'Nehama Valley Bank' had not 'any force or effect whatever.' It was therefore void. There was thus no grantee. The deed conveyed nothing, and Mitchell still remained owner. Being owner, his title passed to Smith, who ought to have had judgment.

Messrs. J. I. Redick and C. Briggs, contra:

1. The power is 'to sell and convey.' The subsequent language was not to confine the power to the then title, but to limit the grantor's responsibility.

2. In Orchard v. Hughes,** this same act of Congress, of 1836, was set up to avoid paying a debt. The defence was not sustained. The effort here is of as bad a kind.

Mr. Justice DAVIS delivered the opinion of the court.