The attempt to act by a government official, by itself, when ultra vires, does not remedy that official's lack of authority for estoppel purposes. See id.; cf. Bergeron v. Savings Bank, 63 N.H. 195, 196 (1884) (a party's attempt to contract does not remedy the lack of capacity to contract). Therefore, a party bringing an estoppel claim against the State or a municipality, based on the representations or conduct of a government official, cannot rely on the official's "asserted or assumed exercise of authority not possessed."
Nor is an attempt to act, a waiver of the disability. State v. Hutchins, 79 N.H. 132, 140; Bank v. Sanborn, 60 N.H. 558, 561; Bank v. Buzzell, 60 N.H. 189; Parsons v. Rolfe, 66 N.H. 620; Bergeron v. Bank, 63 N.H. 195. The deed executed by Mrs. Adams, in which the consideration is set out with great particularity, evidences contract with her husband for the sale of her land to him; a contract relating to such estate.
"Want of legal capacity cannot be supplied by estoppel." Penacook Savings Bank v. Sanborn, 60 N.H. 558, 561; Farmington National Bank v. Buzzell, 60 N.H. 189; Parsons v. Rolfe, 66 N.H. 620. Nor is the attempt to act a waiver of disability. Bergeron v. Bank, 63 N.H. 195. Not only was there no official whose duty it was to act as the representative of the state in applying or interpreting the grant, but no one had the power to take such action.
No question of law has been presented. The only question of law which might have been raised on the facts is settled in Bergeron v. Bank, 62 N.H. 655; S.C., 63 N.H. 195. Case discharged.
The general rule, to which pleading is not an exception, is, that rights are waived when not seasonably asserted. Watson v. Walker, 23 N.H. 471, 497, 498; State v. Richmond, 26 N.H. 232, 242-244, 247; Haynes v. Thom, 28 N.H. 386, 398; Frost v. Martin, 29 N.H. 306, 316; Drew v. Towle, 30 N.H. 531, 539; State v. Rand, 33 N.H. 216, 227, 228; Warren v. Glynn, 37 N.H. 340, 344; State v. Flanders, 38 N.H. 324, 334; Robinson v. Potter, 43 N.H. 188, 191, 192; Peebles v. Rand, 43 N.H. 337, 342; Carter v. Beals, 44 N.H. 408, 411; Wendell v. Abbott, 45 N.H. 349, 352, 353, Bundy v. Hyde, 50 N.H. 116, 122; Murphy v. Crain, 59 N.H. 244, 245; Battle v. Knapp, 60 N.H. 361, 362; Crowell v. Londonderry, 63 N.H. 42, 49; Bergeron v. Bank, 63 N.H. 195, 196. In contemplation of law, Sherman admitted the sufficiency of the reference clause of the declaration by filing a plea that did not deny it, or allowing judgment to go by default, or taking some other course that did not include a seasonable objection.