the case of an obscene picture or print. In such cases no difficulty arises, and no principle is violated in excluding the prohibited articles or refusing to forward them. The evidence respecting them is seen by every one and is in its nature conclusive.

In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people, but to refuse its facilities for the distribution of matter deemed injurious to the public morals. Thus, by the Act of March 3, 1873, Congress declared "that no obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any written or printed card, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly," where, or how, or of whom, or by what means either of the things before mentioned may be obtained or made, nor any letter upon the envelope of which, or postal card upon which indecent or scurrilous epithets may be written or printed, shall be carried in the mail; and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, any of the hereinbefore mentioned articles or things

shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall, for every offense, be fined not less than one hundred dollars nor more than five thousand dollars, or imprisonment at hard labor not less than one year nor more than ten years, or both, in the discretion of the judge."

All that Congress meant by this act was that the mail should not be used to transport such corrupting publications and articles, and that any one who attempted to use it for that purpose should be punished. The same inhibition has been extended to circulars concerning lotteries, institutions which are supposed to have a demoralizing influence upon the people. There is no question before us as to the evi

dence upon which the conviction of the petitioner was had; nor does it appear whether the envelope in which the prohibited circular was deposited in the mail was sealed or left open for examination. The only question for our determination relates to the constitutionality of the act, and of that we have no doubt.

The commitment of the petitioner to the county jail until his fine is paid was within the discretion of the court under the statute.

As there is an exemplified copy of the record of the petitioner's indictment and conviction accompanying the petition, the merits of his case have been considered at his request upon this application, and as we are of opinion that his imprisonment is legal no object would be subserved by issuing the writs; they are therefore denied.

United States Circuit Court, District of Oregon.

MARCH 25, 1878.

SEMPLE vs. BANK OF BRITISH COLUMBIA.

1. FOREIGN CORPORATION-VALIDITY OF TRANSACTIONS-COMPLIANCE WITH STATUTE.A foreign corporation, until it has complied with the laws of the State prescribing the conditions upon which it may lawfully transact business within the State, is a mere nullity, a nonentity, and its transactions within the State are wholly void.

2. ESTOPPEL IN PAIS-SHOWING INVALIDITY OF CONTRACTS OF FOREIGN CorPORATION. The doctrine of estoppel in pais does not prevent a party to a transaction with a corporation from showing that the corporation had not power to do a particular thing, or that it was done in violation of a statute.

3. TITLE-JUDICIAL OR VOLUNTARY SALE OF REAL PROPERTY-CONVEYANCE.A sale of real property, whether judicial or voluntary, does not pass the title, but only gives a right to a conveyance of the property according to the terms of sale.

Action to recover the possession of certain lands in Portland. The plaintiff, in June, 1873, being a married woman and the owner in fee, as her separate property, of the premises in question, joining with her husband, mortgaged the property to the defendant, a foreign corporation doing busi

ness in Oregon, to secure her husband's note for $9,500. The premises were subsequently decreed to be sold as upon execution to pay the note, and upon sale were purchased for the bank, to which a conveyance was in due form executed by the sheriff. The plaintiff alleges that the bank, during the time of these transactions, was a foreign corporation, and had not complied with the laws of Oregon (Laws, 1874, p. 617) requiring such corporation to appoint a resident of the State its attorney to accept service of all process in actions against it, and therefore could not lawfully transact any business within the State, and thence that the note and mortgage were illegal and void.

W. L. Hill, H. Y. Thompson, G. H. Durham, and H. T. Bingham, for plaintiff.

W. A. Effinger, for defendant.

DEADY, Cir. J. (After stating the facts.) The defendant, as to this State, or any transaction therein, is neither a corporation de jure nor de facto. It has never acquired the right to exist here, or even attempted it. Whatever it may be in the place of its creation, here, at least, it is a mere nullity— a nonentity. The question of mere irregularities in its organization does not arise. For there is not the slightest ground for claiming that it has ever, regularly, or otherwise, become clothed with the form or power of a corporation in this State, or attempted to do so. Indeed, it was expressly prohibited from existing or exercising its corporate functions in Oregon, except upon the condition precedent that it shall first comply with the law of the State in the appointment of a resident agent. As well say that any fortuitous assemblage or association of persons not having in any way attempted or intended to become a corporation under the laws of this State might, nevertheless, by simply calling themselves such, and acting as such, become one de facto. As was said in In re Comstock (3 Saw. 218): "The doctrine of estoppel in pais has never been carried so far as to prevent a party from showing that a corporation, even if it be one de jure, had not the power to do a particular thing, or that it was done in violation of a statute." No one is estopped to

show that an act upon which a party claims a right is illegal simply because he was a party to it—even in pari delicto. If the matter concerned the parties to the transaction alone, the rule might be otherwise; but the interest of society, in whose behalf the act is prohibited, is paramount to private equities. As was said in Steadman vs. Duhamel (1 C. B. 888), “There can not be an estoppel to show a violation of a statute, even to the prejudice of an innocent party;" and in Keen vs. Cole- . man (39 Penn. St. 299), "Legal incapacity can not be removed by fraudulent representation, nor can there be an estoppel involved in the act to which the incapacity relates that can take away that incapacity."

It is assumed by the defendant that the mere sale by the sheriff, upon the decree of the court below, divested the plaintiff of her title to the premises. But upon a careful examination of the matter I am satisfied, both upon reason and authority, that the law is otherwise. In Freeman on Ex., ? 324, it is said that "in order to divest the legal title held by the defendant in execution, a conveyance must, in most of the States, be made by the proper officer, in pursuance of a prior levy and sale." The purchaser, "though he is entitled on demand to receive a conveyance, can not be treated as the owner of the property till it has vested in him by a deed executed by the proper authority." (See also Ib. 333.) To the same effect is Rorer on Jud. Sales, 2 357; Bouvier, verba Sale, 19. By the Or. Civ. Code, 22 296, 301, 304, it is provided that a sale of real property upon execution is subject to redemption within sixty days after the confirmation of sale. But if redemption is not made within the time prescribed, the purchaser is entitled to a conveyance, and also the possession of the premises in the meantime. A sale of real property, whether judicial or voluntary, does not pass title, but only gives a right to a conveyance of the same according to the terms thereof. A sale by the sheriff is within the Statute of Frauds, and no title passes except upon the execution of a deed by him. (4 Kent, 434.) In some of the New England States no conveyance is necessary upon a forced sale, as the sheriff's return, in analogy to his return upon an elegit in England, constitutes the title of the pur

chaser. But wherever, as in this State, a conveyance is required, or rather wherever it is not expressly otherwise provided, no title vests in the purchaser at a judicial sale until the officer making the same executes a conveyance to him. In Schemmerhorn vs. Merrill (1 Barb. 511); Smith vs. Colvin (17 Barb. 157); McMillan vs. Richards (9 Cal. 365); People vs. Mayhew (26 Cal. 656); Page vs. Rogers (31 Cal. 294), it was held, under statutes substantially the same as that of Oregon, that a sale by a sheriff did not vest the title to the premises in the purchaser, but the execution and delivery of his deed therefor. This being so, the title to the premises at the date of the execution of the sheriff's deed to the defendant was, notwithstanding the sale, in the plaintiff, and the defendant being then forbidden to transact any business in this State, and therefore incapable of accepting said conveyance or receiving any right under it, the same, so far as it is concerned, was and is void and of no effect, and the title remains and is in the plaintiff. Neither did the confirmation of this supposed sale operate to validate the contract, or to enable it to contract, or to enable it to take anything under it. True, the Code declares that "the order of confirmation is a conclusive determination of the regularity of proceeding concerning such sale." (Or. Civ. Code, 293.) But certainly a determination that the proceedings of the sheriff in conducting the sale in obedience to the process are regular does not include the question of the bidder's capacity to purchase and receive the title. The purchaser may be an infant, a married woman, or an alien enemy; but if he pays the price bid, and the proceedings by the sheriff are according to law,. the sale will be confirmed. The question of the capacity of the purchaser to contract or receive the title is not before the court upon motion to confirm a sale, at least unless specially made, which is not claimed to have been done here. This is a matter which could concern no party to the proceeding but himself, and therefore in this respect he buys at his peril. Nor did the decree of sale give the defendant any right in or to the premises, but only the right to have the same sold according to law to satisfy its demand. (McMillan vs. Richards, supra.) Judgment for plaintiff.