majority">Ostrander, J.

{after stating the facts). As we construe the stipulation of the parties, and this construction is agreeable with the arguments made by counsel, we *542are not called upon to determine whether plaintiff purchased an interest or title which the land department would recognize, but only whether, upon the evidence presented, it appears as matter of law that the estate of Welch was owner of the right to locate [80 acres of the public lands. That Levi Welch owned this right in 1878, and that a certificate to that effect was duly issued to him, which certificate has never been used for the purpose of locating lands, are facts established by the record of the department. That the right was assignable before entry is established by Webster v. Luther, 163 U. S. 331, the practice of the land department, based upon the idea that the right of entry given by the statute was personal and not assignable notwithstanding. Is there evidence of the assignment by Welch of this right ? The parties have in the statement of agreed facts presumed that Levi Welch executed in blank two written instruments, one of them conferring upon an attorney authority to locate the land in the name of the principal, the other, as we understand the record, similar in its terms to the instrument considered in Webster v. Luther, supra. We are led, by the arguments made and from the opinion filed by the learned trial judge, to believe that counsel have assumed the fact presumed in the statement of facts, and that this court is expected to proceed upon such assumption. There is some other evidence tending to support such finding of fact. It was the usual course in such matters. The certificate itself appears to have never come into the'possession of Welch. He lived for 26 years after the certification of his right, during which time he made no effort to locate the land or to dispose of the right to do so. The effect of the fact last stated as evidence opposed to his title is diminished by the other fact that no one else has used the certificate for the purpose of locating land. As we are of opinion that, if the instruments already referred to and described were executed, they amounted to an assignment of the right of Welch, we find a preponderance of evidence opposed to *543the idea that he died possessed of such right. The learned trial judge was of opinion that it was held in Midway Company v. Eaton, 183 U. S. 602, “ that similar powers could not be shown to constitute an assignment.” We do not so read the opinion of the court in that case. What was decided was that, although by the act of congress the Sioux half-breed certificates for scrip were made nonassignable, a valid location of land could be made by virtue of such certificates by an attorney in fact of the Indian, and that he could, either before or after the location was made, enter into an agreement to secure or convey the title. Id.,183 U. S. 618. In Webster v. Luther, supra, it was expressly found that the act of congress did not make the right to locate an additional homestead nonassignable.

With respect to the instrument supposed to have been executed by Levi Welch, the court below said:

“Presuming that the attorney in the powers during the time they were in force up to Welch’s death had them in his possession ready to be used, nevertheless he had no interest in the land to be entered and only had an interest in that which he (the attorney) was to derive from the use of the powers. It is a question, therefore, whether a power coupled with an interest means an interest in the thing itself, or in that which is to be derived by the use of the power. The case of Hunt v. Rousmanier’s Adm’r, 8 Wheat. (U. S.) 201, is conclusive in the defendant’s favor. The attorney had no interest, except as he might derive such from the use of the powers. He had no interest in the land to be conveved. Clearly death revoked the powers.”

The instrument contained the clauses:

“And my said attorney is hereby authorized to sell said lands, or my interest therein, and to make any contract in relation thereto which I might make if present, and to receive for his own use and benefit any moneys or other property the proceeds of the sale of said lands, or any interest therein, or arising from any contract in relation thereto, or received or recovered for any injury thereto, and I hereby release to my said attorney all claim to any *544of the proceeds of any such sale, lease, contract, or damages. And I further authorize my said attorney to appoint a substitute or substitutes to perform any of the foregoing powers, hereby ratifying and confirming all that my said attorney or his substitute may lawfully do or cause to be done by virtue of these presents ” — or similar ones.

It is true that the location would be made in the name of Levi Welch and that the patent for the land would issue in his name. It is also true that until the location of the land the bare right to locate it was transferable. Assuming this right to have been transferred for value, the giving to the transferee, or to any person whom he might name, a power to make such transfer effectual, is not a revocable act. What is imported is a present sale and transfer of the right and of all and every benefit which may be thereafter derived from said right.

We are of opinion that the judgment should be reversed, and upon the agreed facts one should be entered here for plaintiff, with costs of both courts.

Grant, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.

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