dissenting. — This cause involves no seriously controverted principle of law. Great and praiseworthy as has been the efforts of my associates to reach a just conclusion upon the facts, I have, nevertheless,. been compelled to differ with them in their interpretation of the evidence. This want of agreement in our conclusions upon the same facts arises undoubtedly in part from the circumstance that we have viewed the evidence from different points of observation. They, the majority of the Court, finding no sufficient evidence to satisfy them of the irrevocable character of the power of attorney under which Alexander MacGregor conveyed the property in dispute to the Gardners, regarded said conveyances as nullities, being, in their judgment, without consideration; and treated the whole case as if the legal title of the property was yet in James MacGregor; requiring the defendants in this aspect of the case to show by evidence clear and conclusive that *347said property was so held by.James MacGregor for their use. On the other hand I find as a preliminary question arising from the issues made in the pleadings, that said power of attorney was irrevocable, and that the agent, as a matter of fact, had an interest in its execution. Hence, in my judgment, this is the stand-point from which the case is to be contemplated, and the rights of the parties determined.
Viewing the case, therefore, from this stand-point, I am not at liberty to assume that' the title of all the land in controversy is yet in James MacGregor, but must assume, on the other hand, that it has rightfully and regularly passed out of him, and that it is incumbent upon him to show by evidence, clear and conclusive, that he has been wrongfully dispossessed. In this aspect of the case, as well as by the condition of the pleadings, he holds the affirmative, and, therefore, must affirmatively show himself entitled to the relief for which he prays.
If the warrant of attorney expressly stipulated for its irrevocability, and that the agent had an interest in its execution, this would be conclusive on the parties upon that question, without further evidence. ‘ In the absence, however, of any such stipulation, showing the existence of both facts, it is competent to prove by extrinsic evidence that the power was coupled with an interest, i n which case the power becomes, in the language of Judge Story, “from its own nature and character, in contemplation of law, irrevocable, whether expressed to be so, on the face of the instrument conferring the authority, or not.” Story’s Agency, §§ 476, 477.
The reason of this doctrine is plain. The agent having an interest in the thing itself, concerning which the power was given, the power when thus conferred, and united with the interest, partakes of the nature and qualities of a contract • and to allow a party to annul and set aside his *348own solemn engagement, at his own pleasure, would result often, not only as a surprise to, but a fraud upon the rights of the agent, whilst it would be against the whole policy of the law, as well as the clearest principles of equity.
The preliminary and all-important inquiry in this controversy is, therefore, whether the powers of attorney under which Alexander conveyed to the Gardners were revocable or irrevocable. If the former and the conveyances were made without consideration, or for the benefit of the agent, then they should be held to be void and fraudulent as against the principal. If the latter, because of the equitable interest or estate which the agent had in the lands, then the conveyances were legitimate and proper, and should not be impeached for the want of consideration.
Upon this particular question the evidence, to my mind, is clearly with the defendants, especially in regard to some of the lands. Look first at the acts, conduct, and the relations of the parties prior and up to the time of the execution and delivery of said powers, and what does the evidence disclose ? Why, that Alexander, as early as 1837, came to the Valley of the Mississippi, located at Prairie du Ohien, Wisconsin, and in the summer of that year commenced running a ferry in connection with one Burnett, between Prairie du Ghein and a point in Iowa, now called McGregor; that he and the said Burnett became the joint owners, about that time, for the purpose, perhaps, of protecting their ferry landing, of one hundred and sixty acres, known as the Spanish grant to Bazil Giard, Claim No. 1, situated on the west bank of the Mississippi, and at present constituting a part of the town site of McGregor; that afterwards, in 1841, they purchased for the benefit of their ferry, which they had been operating since 1837, lot 1, in fractional section 26, fourteen TW acres, situated one-half mile below the first tract above specified.
*349Intervening and contiguous to these two tracts were lots 1 and 2 in section 22, containing ninety-nine acres, and the N. W. of N. E. ¿ of section 27, containing forty acres; on both of which one Samuel B. Olmstead had a pre-emption claim which was afterwards recognized by the government. On the 4th of December, 1841, agreeably to the certificate of the Register of the Land Office, Olmstead entered the forty acre tract last above named, with money, as he states in his deposition,, advanced to him by Alexander MacGregor. All this occurred a year before it is known that James MacGregor had ever come to the "West, or had anything to do with the business affairs of Alexander. In December, 1842, we have the first account of James MacGregor being at Prairie du Ohien, or in the West. In the meantime Alexander had become greatly embarrassed in his business transactions, making it unsafe, perhaps, to hold property in his own name. During this first visit of James to the West, Alexander, who had negotiated with Olmstead for the purchase of this forty acre tract (with some sort of understanding that his partner in the ferry operation, Burnett, was to be one-half owner) procured the said Olmstead to assign the Land Office certificate of purchase to and in the name of his brother James, which was accordingly done on the 12th of December, 1842. This assignment, Olmstead testifies, was made to James, at the request and for a consideration paid by Alexander. It is true James claims to have paid eighty dollars for the assignment of this certificate but so far from there being any proof of this fact, he admits by implication, that in this he was mistaken, by offering ten years thereafter, in Minnesota, and that too after this suit was commenced, to pay Olmstead the $80, which was declined upon the ground that he had been paid. There is nothing in all the evidenc# that I have been able to discover, to vary or contradict these facts, but on the' other hand much to confirm. *350And they explain not only the manner how, but the reason why the title of this forty acre tract was placed in James; that it was simply to protect it for the benefit of Alexander, who paid for it and was the equitable owner.
Now for the facts in relation to the ninety-nine acre tract, being lots 1 and 2 in section 22. In the winter of ’44 and ’45, James MacGregor returned to the West, as the avowed friend of Alexander, to sustain and assist the latter in his pecuniary embarrassments. During his visit, Samuel B. Olmstead testifies that he borrowed of him two sums of money, one sum of $126, which he afterwards repaid, and another sum of $120 or $140. With this latter sum on the 15th of March, 1845, he pre-empted lots 1 and 2 in section 22 aforesaid, and afterwards sold the same and transferred the certificate of purchase to James MacGregor. He states that the consideration of this assignment to James was $870 paid him by Alexander, and the cancellation of the debts due from him to James MacGregor for the money borrowed with which he entered the land. About the same time James stated the account between himself and Alexander in his own handwriting, as it was proven by several witnesses, in which he charged up the debt canceled against Olmstead to Alexander, thereby showing conclusively that the purchase was alone for Alexander’s’ benefit, and that he paid and was to pay the entire consideration. Why the assignment of the certificate was made to James, and the patent in May following was issued by the government to him as the assignee of Olmstead, is sufficiently accounted for upon the ground that at that time Alexander could not with safety hold property in his own name, and James had come to the West by an arrangement with the whole family expressly to aid Alexander in his difficulties. The facts touching the pre-emption of this ninety-nine acre tract of land by Olmstead, and who advanced to him the consideration of the assignment to James MacGregor, do *351not rest alone in the testimony pf Olmstead. To escape ■the force of his testimony an attempt was made to impeach him, but very unsuccessfully in my judgment. They are abundantly confirmed by the declarations and admissions made at different times and to various persons. Take first the simple fact that James deliberately charged to the account of Alexander at the time, with his own pen, the $120 debt which he had canceled against Olmstead, and which formed a part of the consideration for the assignment of the Land Office certificate for lots 1 and 2 in section 22 to the said James. How could he have made such a charge except upon the idea that Alexander was the real party beneficially interested in said transaction.
This act of James is wholly inexplicable with the notion that he was the real purchaser. Then again, if any doubt exists upon this point it is removed, it seems to me, by a letter which James wrote to Alexander on the 20th of January, 1845, in which he holds the following language: “Have Olmstead get the certificate, and then he can assign it to me, and the patent can issue in my name; this will obviate all former difficulty, have nothing to do with it in appearance of owner, until the patent issues.” The meaning of this extract from James’ letter is too transparent to need any explication. After the assignment was made agreeably to his request, he obtains from the Government a patent, in May, 1845, and immediately on his return from Washington City, in the spring of 1845, to New York, when, as the assignee of Olmstead, he had obtained a patent from the Government for said land, he informed his brother Duncan of that fact, and said he got the patent for Alexander. Now all this transpired, and these admissions, both in acts and declarations, were made before he employed a lawyer (Oct., 1845), in the State of New York, to draw the power of attorney aforesaid; and they harmonize not only with what he told his lawyer at the time, but fully *352explain why it was that his lawyer inserted the word, irrevocable, in the power of attorney. We are to suppose that no lawyer of .the apparent intelligence and learning of Mr. Ellsworth would employ the word, irrevocable, in drawing an ordinary power to sell land. Nor would it be necessary for him to explain the legal effect of such a power, except upon the idea that the word, irrevocable, in a power of attorney has a technical meaning, and is intended to show that the same partook of the nature of a contract, and that the agent thus empowered was beneficially interested.
Ellsworth, in his deposition says, that at the time James MacGregor requested him to draw said power of attorney, he, the said James, explained to him the purpose or end sought to be obtained by them, and that he, Ellsworth, explained to James the legal effect of said power. Again, he states “that the explanation given to him by James MacGregor, of his object was briefly and substantially this: to give Alexander full power to dispose of certain lands and property near Prairie du Ohien, and receive the benefit of the same, and at the same time to prevent the property being taken from him upon any outstanding debt or liability against Alexander. He declared his object to be to aid Alexander.” * * * Again, “he said what he did and was doing was for Alexander's benefit.”
How James could hold such language in connection with his explanation of the object he had in view in authorizing Alexander to sell the lands, the legal title of which was vested in himself, is utterly inconceivable upon any other hypothesis than that Alexander was the equitable owner, and beneficially interested in the sales. But this latter theory accords exactly with all that he did and said, touching the premises, before, at the time of the execution of said power, and subsequent thereto.
Now let us see what were some of his subsequent acts and declarations.
*353He told the witness, John Thomas, he was not in the West on his own business, but for the purpose of securing the land where the town of MacGregor now is for the benefit of the children of Alexander MacGregor. He told his brother-in-law, N. Vanderworker, in the summer or fall of 1848, that he had purchased lands at MacGregor’s Land* ing, embracing or securing the ferry grounds. He remarked to the witness that the purchase was one of great importance to Alexander, that he had made it for his benefit ; said it was nothing he ever expected to realize any benefit from; and mentioned that it would not do for Alexander to take title to hold the property, as he had no capacity to make property or to keep it; and that his circumstances in business were not such that he could hold property, &c.
George D. Gardner, in his deposition states, that on the 12th of August, 1848, at the request of James MacGregor, he drew a power of attorney from the said James to Alexander MacGregor to purchase and sell lands in Wisconsin, Illinois and Iowa, “ and said that he wanted it so drawn, that Alexander would have full power to buy and sell lands in said States; that he did not want Alexander to be sending him every little while a deed to execute.; that it was all for Alexander’s benefit, and that he did not want to be troubled with it,” &c.
Of the same general purport is the testimony of Duncan MacGregor, F. Hoag, 0. J. Leonard, Esq., Cornell, Wordsworth and some others, to which it is unnecessary to allude in detail. A letter, however, written by James on the 28th day of April, 1848, to Alexander, ought not to be overlooked. Among other things it says.: “ As to the amount that should be deeded to you whenever there is a1 chance to deed to you free from its going to others, I do not think there will be any difficulty between us on *354that score. Please communicate to me what you think would be right as to deeding to you.”
Now to my mind these repeated declarations, written and verbal, made under a variety of circumstances, and to various persons, both relatives and strangers, in different states and localities, ranging through a period of six or seven years, all of the same general purport, not only estop James from denying the same, but absolutely leave no room whatever to doubt,, that at the time said power was executed and delivered, Alexander was the equitable owner of the lands be was authorized to- sell, and as such had an interest so coupled with the powers, as imparted to them the attributes of contracts; and therefore irrevocable in their nature. This important fact being found as a preliminary question in this controversy, upon what theo’ry, it may be asked, should tbe same be determined ? Certainly not upon the assumption, as a starting point, that the legal title of the lands in dispute are all still in James, simply because Alexander bad conveyed tbe same under the power of attorney, without any other consideration than that of another trust perhaps in favor of himself and family. This it was competent for him to do as the equitable owner thereof; and when so done, it is not a matter of which James could justly complain. Having clothed Alexander with an irrevocable power to sell, be thereby stipulated in legal contemplation, that Alexander might make such disposition of the property as any other rightful owner could do. In this aspect of the case he was lawfully divested of the legal title, and a court of equity cannot restore it again to him except upon clear and unquestiona„ble proof on his part, that he has in some way been wrongfully or fraudulently dispossessed, and in this respect be bolds the affirmative of the issue, and indeed this is the attitude in which the pleadings in this case places him.
*355The question then recurs, whether the plaintiff has sustained his complaint by competent proof. If he has, I confess my mind is lamentably at fault in discovering where it is to be found in the record before us. If it is claimed that it is to be found in the acts and declarations of Alexander in his lifetime, tending to show that he was simply acting as the agent of James, in the purchase, sale and management of said property, the reply, in the first place, is, that these do not amount to a tithe of the confessions made by James to the contrary, to which we have already alluded. And secondly, such as they may be can readily be referred to the relation of trustee and cestui que trust which existed between the parties, and which had been created for the specific purpose of protecting, for the time being, the property from the creditors of Alexander, and to assist him in and through his pecuniary embarrassments ; and which perhaps finds its best illustrations or explanation in the letter addressed by James to Alexander from Washington City in January, 1845, with reference to the ninety-nine acres pre-empted by Olmstead, in which he advises Alexander to let the patent for said land issue in his name, and that he, Alexander, should have nothing to do with it in appearance of owner until the patent issues.
Again, we have already insisted that this peculiar and confidential relation existing between the parties as brothers, with reference to the property in controversy, established by a family arrangement for the benefit of Alexander, abundantly accounts for the reason why the legal title of the land was vested in James; and, therefore, in the adjustment of the rights of the parties, he is not entitled to any special advantage from this circumstance.
Now, in regard to the forty acre, and the ninety-nine acre tracts above described, we have already shown that James, in the purchase thereof, advanced no money except $120, and this sum not as a purchaser himself but as a loan *356to Olmstead, who pre-empted both tracts. And when Olmstead sold the same to Alexander for a consideration, which he swears was paid him by Alexander, except the $120 loaned as aforesaid, and the legal title placed in James, for a purpose already explained, James canceled the loan against Olmstead and charges the same to Alexander, who got the benefit thereof as'the equitable owner of said land. So that really, so far as the evidence in the cause goes, James would seem to have scarcely the semblance of a claim to these two tracts, beyond that of a naked legal title which he at one time held in trust for his brother.
It is true Alexander, in his answer, makes a statement in regard to these two tracts of land which somewhat embarrasses his right in the premises, but to which an undue importance has been • attached. It is that they formed a part of the ferry property, and constituted a portion of the trust fund property, implying thereby that they had been purchased as the other ferry property had been, with the fund left by Gregor MacGregor at his decease to James and Duncan MacGregor, in trust for Alexander and wife and children, which it is claimed is consistent with the idea that these tracts had been purchased by Alexander in the method stated in another part of his answer, and shown by the evidence in accordance therewith. If this statement tends somewhat to confuse defendant’s chain of evidence establishing title to these two tracts, it does not, when taken in connection with the whole answer, materially diminish the validity of their claim, whilst upon the other hand it adds nothing whatever to the strength of plaintiff’s claim thereto; for it is not pretended by him or any one else, that the purchase which he made of Burnett’s interest, with what was understood by the parties at the time to be the trust fund aforesaid, included the two tracts in question. Indeed the plaintiff, in his replication, denies that they constituted any part of *357the ferry property, nor does he pretend to set up any claim to them in virtue of his purchase from Burnett.
If the inference drawn from this statement, as above suggested, be a just one, still the most that can be said about it, is that the defendants’ counsel in drawing the answer, thought proper, out of abundance of caution, to present two distinct and independent grounds or sources of claim to the property; one founded upon a purchase of Olmstead with his own private means, the other upon a purchase made with or out of the trust fund. The latter proves to be without any foundation, whilst the former has been reasonably established by a preponderance of evidence.
But there is another, and, to my mind, a more satisfactory explanation of this statement, to be found in the fact that the answer of Alexander seems to have been drawn up on the theory that the two thousand dollar trust fund left in the hands of James and Duncan MacGregor, had in fact been transferred and invested in the West, for the purpose and benefit of Alexander’s wife and children.
Fifteen hundred had been given to Burnett for his undivided half of the ferry privilege and the two lots of ground appurtenant thereto, to wit.: The fourteen acre lot in sec. 26, and the Bazil Giard claim. Five hundred dollars had been sent out before that to Alexander, which had been expended in the erection of a tavern house at MacGregor. These two sums, in their aggregate covered the amount of the trust fund, and were advanced and paid by James, who, at the time, insisted and declared to his co-trustee, Duncan MacGregor and others, that he intended such advancement to be the execution of the trust; and upon the idea that it was executed, and that Alexander and family were enjoying the benefit thereof in the West, that he demanded and obtained from Alexander and his wife a receipt for the interest thereon for several years without the payment of any additional money to them. These receipts were *358exacted and given, it is supposed, for the reason that the trustees had not yet been discharged by any competent tribunal from their fiduciary relation to the fund, and that they were required by the will of Gregor MacGregor creating the trust, to pay annually to the beneficiaries the interest upon the fund.
Now, it must be remembered, that Alexander in his answer does not allege that the forty and the ninety-nine acre tracts were purchased with the trust fund, but that he had conveyed them to the Gardners as a part of the trust fund property, meaning simply thereby that he intended that these two tracts, (which had been considered on account of their locality a part of the ferry property,) should, with the other ferry property, represent the whole trust fund, in lieu of that which had gone into the tavern building. In this aspect of the case, which is consistent with the whole answer, no unfavorable inference should be drawn against the defendants from the statements in question.
The foregoing sufficiently exhibits the grounds of my dissent from the opinion filed by a majority of the Court, and it is not necessary to consider in detail the title to the other tracts of land included in this controversy. I will simply state what, in my judgment, the decree should be in this case, and that will indicate the conclusion to which my mind has been brought by the evidence in relation to the respective rights of the parties.
Bound, as I think we are, by the decision of the Supreme Court of New York in relation to two of the tracts, to wit: The one hundred and sixty acres in the southeast corner of the Bazil Giard grant, and lot one in fractional section 26, township 95, containing fourteen TW acres. I would award, first, an equal portion of them and the ferry franchise to each of the parties. Second, I would decree to the heirs of Alexander, as against the plaintiff, the following *359tracts: N. W. J of N. E. ¿ of sec. 27; containing forty acres ; lots one and two of fractional sec. 22, .township 95, R. 2 West, containing ninety-nine XVV acres; lot one, in section 11, township 94, R. 3 West, containing fifty-one fW' acres; lots two, three and four, in section 11, T. 94, R. 3 W., containing one hundred and fifty-three x675„ acres; lots one, two and three, in section 23, and lot one in section ' 26, T. 95, R. 3 W., containing one hundred and eighty-' seven X3/T acres. Third, the N. W. J and lot 1 in section 27, T. 95, R. 3 West, and the undivided half of lots two, three and four, in section 35, T. 95, R. 3 W-, containing one hundred and sixty-two and Tyv acres.
The only serious doubt which I would have in making such a decree would be in relation to the land awarded to the plaintiff; under the third head. Still there are some considerations, which it is unnecessary now to name, that would reconcile me to such an adjustment of the controversy. Of course, upon this basis of the settlement, • I should state the money account between the parties different from the one stated by the majority of the Court.