in Iron Co. v. Walker, 76 N. Y. 521, Parrott v. Colby is cited, and substantially the same doctrine announced. In view of the foregoing authorities, our conclusion is that the plaintiff's right of action against the defendants commenced when his first notes matured, and was barred in three years thereafter. We therefore advise that the judgment be affirmed.

We concur: HAYNE, C.; Foote, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is affirmed. Rehearing denied.

(83 Cal. 12)

MORA, Bishop of Monterey, v. MURPHY. No. 13,159.)

(Supreme Court of California. Jan. 30, 1890.) POWER OF ATTORNEY-INCORPORATION OF RELIG IOUS SOCIETIES.

1. A power of attorney to convey and sell, or to agree to convey and sell, land, is prima facie a power to sell for money; and, in the absence of evidence to the contrary, a tenant in common, who is so authorized by his co-tenant, but who, in his own name only, agrees to convey, and afterwards does convey, a portion of the land, in consideration of the purchaser's boring an artesian well thereon, binds only himself, and not his co-tenant.

2. In ejectment by the vendor's co-tenant against the vendee, a finding that the plaintiff knew that the deed purported to convey the whole title to the tract is matter of law, and not of fact.

3. As the vendor could convey and contract with reference to his own share, plaintiff was not estopped to deny the vendee's title to the whole tract, by his knowledge of the agreement, the well-boring, the deed, and the occupation and improvements of the purchaser, without objecting

thereto.

4. Under St. Cal. 1850, p. 374, § 177, and St. 1854, p. 53, § 2, amending St. 1850, § 184, a religious corporation was required to file its articles of incorporation with the county clerk of the county where situated. St. 1853, p. 37, § 2, provided that the certificate of incorporation of manufacturing, trading, and mining corporations should be filed with the county clerk, and a copy with the secretary of state. Civil Code, § 299, provides that no corporations hereafter formed shall hold or purchase property without filing a certified copy of their ar ticles of incorporation, filed with the secretary of state, with the county clerk of the county where the property is situated, and that every corpora tion "now in existence" must file "such certified copy" with the county clerk of the county where the property was situated. Held, that the section of the Code does not apply to the Roman Catholic Bishop of Monterey, a sole corporation formed before the adoption of the Code, and it was not necessary for it to file its articles of incorporation with the secretary of state and the county clerk before suing in ejectment.

Department 2. Appeal from superior court, Santa Barbara county; R. M. DILLARD, Judge.

Ejectment by Francis Mora, Roman Catholic Bishop of Monterey, a corporation sole, against Murphy. From the judgment for defendant plaintiff appeals. Civil Code Cal. § 299, provides that no corporation hereafter formed shall purchase or hold property without filing a copy of its articles of incorporation, filed with the secretary of state, with the county clerk of the county where the property is situated, and that all corporations "now in existence" shall also file such a copy

with the county clerk of any county where they hold property.

R. B. Canfield, for appellant. W. C. Stratton, for respondent.

THORNTON, J. Ejectment. Judgment for defendant. Appeal by plaintiff from the judgment. On the 8th of May, 1874, J. S. Alemany, and Thaddus Amat, Roman Catholic Bishop of Monterey, the latter a corporation sole, became tenants in common of the College Rancho, in Santa Barbara county, the interest of Alemany being three-fifths, and that of Amat two-fifths, of the rancho. On the 21st of March, 1887, Amat, as a corporation sole, appointed Alemany his attorney in fact by a letter of attorney bearing date the day just above named. By this letter Amat authorized his constituent, as his attorney, and for him, and in his name, to convey and sell his title to the land above mentioned, or to agree to convey and sell the same, giving and granting to his attorney full power in the premises, etc. On the 10th day of June, 1879, Alemany executed a written agreement, whereby he agreed to convey to detendant 640 acres of the rancho above named, in consideration of defendant's boring an artesian well upon the rancho. Defendant complied with the conditions of the agreement on his part, and on the 4th day of November, 1879, Alemany conveyed to defendant a specific tract in the rancho, which is the parcel of land involved herein. letter of attorney was in force when the agreement and conveyance above mentioned were executed. Neither the agreement nor the conveyance was signed by Amat or the plaintiff, and Alemany did not sign the name of either Amat or plaintiff to the document aforementioned. Prior to the making of the agreement with defendant, Amat died, and was succeeded by plaintiff as bishop of Monterey.

The

The above facts are found by the court below. The agreement with defendant was made by Alemany alone, and did not bind Amat or the plaintiff. The same is true of the conveyance. Neither purports to be made on behalf of Amat or the plaintiff. So far as the findings show, Alemany acted wholly for himself in executing the agreement, as well as the conveyance to plaintiff. He did not sign the name of either Amat or Mora to either paper, and it is too clear to admit of argument that he acted, not as attorney under the letter of attorney, but entirely on his own account. Alemany was competent to contract. He was the owner of an undivided three-fifths of the rancho, and the ownership of this large interest was sufficient inducement to prompt him to act for his own interest and to bind himself alone. Further, the letter of attorney did not authorize Alemany to contract for the boring a well, and pay for it in land. He was authorized to convey and sell, or to agree to convey and sell. A power to sell and convey is prima facie a power to sell for money, usually for cash paid.

To give it any other meaning, there must appear to be some usage or custom in the country where the power is to be exercised modifying the prima facie significance of the power conferred. The same is true of a power to agree to convey and sell, or sell and convey. We see no difference in the meaning to be attributed to the two forms of expression, whether it is convey and sell or sell and convey. The defendant was not justified in attributing any other effect in law to the agreement and conveyance than that above stated. It was clear that he was dealing with Alemany alone, and that to Alemany alone could he look for his compensation. The only parties to the contract in fact and in law were Alemany and defendant.

It is argued that an estoppel arose and bound plaintiff because the agreement was made for the benefit of the rancho; the plaintiff was present while the well was being bored, and knew that Alemany had agreed to convey the land to defendant in consideration of his boring it; that at the time a partition was made between plaintiff and Alemany, by which the specific tract conveyed to the defendant fell into the portion conveyed to plaintiff; plaintiff knew that this land had been conveyed by Alemany to defendant for boring the well, and that it purported to convey the whole title to this trust; and that plaintiff further knew that defendant was occupying this land, and had made valuable improvements on it, and made no objections to the agreement or the deed, or to the well, or the boring of it, and gave defendant no notice of any objection to the agreement or well or deed.

The above facts are found, on which this contention as to the estoppel is based. Be fore considering the effect of these facts as an estoppel, it is well to notice one matter injected into the findings as a fact which is clearly matter of law. It is stated in the finding, as is quoted above, that plaintiff knew that the deed of Alemany to defendant purported to convey the whole title to the tract. This cannot be said from any fact appearing in the findings, unless it be held to be law that one tenant in common can, by conveying a specific tract, convey the title of his co-tenant. The legal character of Alemany's deed to defendant has been considered above, and it is clear, both in reason and authority, that he conveyed no more than an undivided three-fifths of the tract in suit, and intended to convey no more. It follows from what has been above said that there can be no estoppel upon the facts found. Granted that plaintiff knew of the agreement, the well-boring, and the deed, that he was further cognizant of the facts of occupation by defendant, and making improvements, without making any objection, where is the estoppel? Plaintiff knew that Alemany had a right to contract and pay for a well on his own land with his own land, and to make a deed of it. He also knew that defendant had a right to the deed made by him, and to occupy and im

prove the land. What right had plaintiff to make any objection to such acts of Alemany and defendant, and of what avail would such objection have been? The parties were only exercising each his own rights, which rights, so acted on and exercised, plaintiff also knew did not in the least affect or impair his rights. The failure of plaintiff to object did not affect defendant's rights. Defendant was not deceived in any way. He was permitted to exercise his rights without molestation by plaintiff. How anything like estoppel can be predicated of plaintiff's conduct does not appear.

We think it clearly follows that the plaintiff and defendant became tenants in common of the land in suit, (Stark v. Barrett, 15 Cal. 363,) the plaintiff's interest being twofifths, and the defendant's three-fifths, thereof; and that plaintiff is entitled to recover his property, (Carpenter v Webster, 27 Cal. 524,) unless a further contention of defendant can be maintained. This contention we proceed to consider. Bishop Amat became a corporation sole in 1870. He filed his articles of incorporation in the office of the county clerk of Monterey county in the year just named, and filed a certified copy of those articles so filed in Monterey county, in the office of the county clerk of the county of Santa Barbara, before this action was commenced. The original articles of incorporation were never filed in the county of Santa Barbara, nor has a copy of the copy of the articles of incorporation filed in the office of the secretary of state, certified by said secretary, ever been filed in the office of the county clerk of Santa Barbara county. The contention of defendant is that, as a certified copy of the copy of the articles of incorporation filed in the office of the secretary of state has never been filed in the county clerk's office of Santa Barbara county, plaintiff cannot maintain this action. As the legislation of this state stood in 1870, when the corporation plaintiff was formed, the filing of the articles of incorporation was only required to be made with the county clerk of the county where the church or other religious society or association was situated. See St. 1850, p. 374, § 177; St. 1854, p. 53, § 2, amending section 184 of act of 1850. In 1853 an act was passed providing for the formation of manufacturing, mining, and trading corporations, and by this act it was provided that the certificate of incorporation (articles of incorporation) should be filed in the office of the county clerk, etc., and a duplicate of the same filed in the office of the secretary of state. St. 1853, p. 37, § 2. Religious corporations were not referred to in this act, and it had no application to them. Such corporations were not affected by this act. The law as to them remained unchanged. Has the law as to such corporations ever been changed? It is said that it has by the provisions of the Civil Code, and we are referred to section 299 of that Code. It is clear, on a perusal of the section referred to, (299, Civil Code,) that it refers only to corporations whose articles had

was informed that the judge resided "about one mile away from said lower town, and had not been in town since about 5 P. M." He was also informed that the plaintiff's attorney "had been violently kicked by a horse, and was unable to be out of his house." The affidavit of Blanchard further states that "by the time he had completed his searches for said clerk, judge, etc., it was 9:30 o'clock P. M. of said 17th of January, and very dark, and raining all the time;" that he was a stranger to the place; and that "after the search aforesaid he was exhausted and sick;" and that "when he gave up said search at about 9:30 P. M. on said 17th he really did not consider it decorous or proper for him to make any further exertion to save a default, but honestly, and in good faith, thought he was excusable for the default." At 8:30 or

9 o'clock of the next day the papers were served and filed, but the default was entered before 8 o'clock, at the request of the plaintiff's attorney.

The foregoing facts appear without substantial conflict. The respondent's affidavits show, among other things, that the defendant's attorney was mistaken as to some of the hours which he gives; that the clerk remained at his residence until 7 P. M., and that it was after that hour that the attorney called there. But we do not consider this material. There is nothing in the respondent's position that there was no necessity for the appellant's attorney to go in person to Auburn, and that the papers could have been sent by mail. Going in person showed extra caution; and, in addition to this, the attorney wished to arrange for the hearing of the motions, etc. It was quite proper for him to go in person. Nor can he be charged with imprudence in not taking the stage between Placerville and Auburn. It does not appear wherein the stage route was preferable to the railroad. But, assuming that it was preferable, the railroad was good enough for the purpose, if the usual train had been running, and the attorney had reasonable ground to believe that it was running. He was informed on inquiry that there was such a train, and the railroad time-tables assured him of the fact; and the discontinuance of the train within three days was a thing which may well have taken a prudent man by surprise, notwithstanding the fact that the change was published in certain newspapers. It was an accident against which ordinary prudence did not guard. After this accident the attorney seems to have used reasonable endeavor to avert the consequences. It may be conceded that after he arrived at Auburn it would have been better to have gone at once to find the judge of the court or the plaintiff's attorney instead of looking for the clerk. But the evidence seems to us to show an honest and faithful effort to comply with the law, and, although such effort was not as well directed as it might have been, we think that when the attorney, tired, cold, and sick, gave up his search in a strange

town, at 9:30 o'clock on a dark and rainy night, he had done enough to entitle him to relief under the wise and liberal rule which recognizes that there may be cases of neglect which are excusable. The sworn answer was a sufficient showing of merit. We therefor advise that the orders refusing to set as... the default be reversed, with directions to the trial court to permit the answer to be filed.

We concur: BELCHER, C. C.; GIBSON, C.

PER CURIAM. For the reasons given in the foregoing opinion the order refusing to set aside the default is reversed, with directions to the trial court to permit the answer to be filed.

(18 Or. 351)

KILLINGSWORTH v. PORTLAND TRUST Co. (Supreme Court of Oregon. Jan. 13, 1890.) CORPORATIONS-EXECUTION OF DEED AS ATTORNEY IN FACT.

When a corporation is made the agent of another to sell and convey real property, it acts through the same instrumentalities as when acting for itself, and the relation between it and its instrumentalities are as one legal entity or artificial person in the performance of its engagements, and involves no delegation of powers. Held, therefore, that a corporation has capacity to execute a deed as attorney in fact for another. (Syllabus by the Court.)

Appeal from circuit court, Multnomah county; E. D. SHATTUCK, Judge. Sears & Beach, for appellant. & Woodward, for respondent.

LORD, J.

Woodward

This is an action to recover damages for failure of the defendant to execute and deliver to the plaintiff a conveyance of certain premises pursuant to an agreement to that effect. The defendant denies this, and alleges, as the attorney in fact of one Deborrah H. Ingersoll, in compliance with said agreement, that it did execute and tender to the plaintiff a conveyance of said premises, etc., and now brings it into court, and deposits it for the plaintiff, and that plaintiff refuses to accept the same. To this the plaintiff demurred on the ground that the same does not state facts sufficient to constitute a cause of defense to the cause of action alleged.

The point raised by the demurrer is, can the defendant, a corporation, execute a deed of conveyance of real property as the attorney in fact of another? In this state the right to become incorporated is secured by a general law, and any persons may avail themselves of it by complying with its provisions. Corporations which owe their existence to the common law must be governed by it in the mode of their organization, in the manner of exercising their powers, and in the use of the capacities conferred. ture may authorize the creation of corporations for many purposes not contemplated by the common law, and endue them with powers and capacities to be exercised in disregard of

But the legisla

its rules, or which may greatly extend, modify, | or limit their common-law powers and privileges. The measure of the legislative power in this regard is limited only by circumstantial provisions. Ordinarily, in the creation of corporations, the common-law incidents and powers are implied, unless otherwise provided or restrained by the law of its corporate existence. But, in determining the nature and extent of the powers and capacities conferred on a corporation, and the mode of their exercise, the law of its creation, whether a charter or a statute, must be consulted; for it has no power, except as thus given, either expressly or as incidental to the exercise of the powers granted. It is provided by our statute that a corporation may engage in any lawful enterprise, business pursuit, or occupation, (Code, § 3217;) so that, unless corporations are affected with some disability, when the articles of incorporation are sufficient for the purpose, there is no lawful occupation or business in which it may not engage in this state exactly as individuals. By its articles of incorporation, the defendant corporation is expressly authorized and empowered "to act as the general or special agent, or attorney in fact, for any public or private corporation or person in the management and control of real estate or other property, its purchase, sale, or conveyance, etc. No question is made but what the defendant, by its articles of incorporation, has conferred upon it the power to do the act as to which there is claimed to be an alleged failure; but the contention is that a corporation, from the nature of the organization, as an artificial body, necessitated to act through agents, is incapable of executing a deed as an attorney in fact. This argument is based on the assumption that there are some things, from the inherent nature of the case, that a corporation is incapable of doing, and seks its illustrations in the common law, as that a corporation cannot be an administrator or executor, because its duties are of a personal nature, and cannot be delegated; or cannot take an oath, when so required by law, before proceeding to execute some duty or trust. But this argument overlooks the fact that a corporation may be empowered to do by statute what it was incapable of doing under its common-law powers; and, when thus created, its powers, capacities, and modes of exercising them depend upon the statute. Nor is the disability, in such cases, of a character which cannot be obviated by statute; for, as Mr. Morawetz says, "there are numerous instances in which corporations have been expressly empowered by statutes to administer estates." 1 Mor. Priv. Corp. § 357.

The reason why a corporation was unable to perform the office of executor or adminis trator, as stated by Blackstone, was that it I could not take an oath for the due execution of the office. 1 Bl. Comm. 477. But, to enable a corporation to act as executor or administrator, the statute may dispense with the oath, or provide that some one of its

scribed range, it can do whatever a natural person mutatis mutandis could do. Whart. Ag. § 57.

In Barry v. Exchange Co., 1 Sandf. Ch. 280, it is said: "Every corporation, as such, has the capacity to take and grant property, and to contract obligations in the same manner as an individual. * * * And every such corporation has power to make all contracts which are necessary and usual in the course of the business it transacts, as means to enable it to effect such object, unless expressly prohibited by law." Having the power conferred upon it to act as an attorney in fact, is it not endowed with all the faculties or capacities essential to execute it, and carry out the business projects of its creation? Why may not a corporation act as an agent for an individual, or another corporation? As the owner of real property, it can by its authorized agents execute a conveyance, or it may authorize another, by power of attorney in writing, to convey such property for it; why then may it not act as the agent or attorney in fact of another for a like purpose, when it is so authorized, and to thus act is one of the chief powers conferred to effect the object of its creation, and to carry on the business in which it is engaged?" "Within the scope of its corporate powers," says Mr. Mechem, "unless there are express provisions in its charter or constating instruments to the contrary, a corporation may act as agent, either for an individual, a partnership, or another corporation. Many of the great corporations of the country are organized for