nately, for the common benefit of all, a receiver appointed on the foreclosure of mortgages covering a part only of the company's property, with power to take possession of the mortgaged premises and to carry on the mines, who is permitted by the company to take possession of its entire property, and to work all its mines, rendering them more valuable and more capable of paying creditors, cannot be considered a trespasser, and is not personally liable to a general creditor of the company for sums realized by him from a mine not covered by the mortgage. 2. A mortgage of specifically described land, together with all the lands, mines, and minerals of every kind belonging to the mortgagor in a desig. nated county, covers all mineral lands in that county shown by proper evidence dehors the mortgage to have belonged to the mortgagor at the time of its execution. Commissioners' decision. Department 1. Appeal from superior court, Santa Clara county; D. S. BELDEN, Judge. T. I. Bergin, for appellant. S. F. Leib, for respondent. FOOTE, C. This appeal is taken from a judgment in favor of the plaintiff, and from an order denying the defendant a new trial. From the record, it appears that Henry May was appointed the receiver of the property belonging to the Santa Clara Mining Association of Baltimore, whose lands and property were in the county of Santa Clara in this state; that the lands owned or possessed by this association contained mines of quicksilver; that the association was without means to work the mines, by which alone its then numerous debts could be paid; and that, to that end, May was authorized by the court which appointed him to borrow money, and use and expend it in working the mines, etc. He was originally appointed receiver in an action brought by the executors of the estate of W. S. O'Brien, deceased, to foreciose a mortgage on certain specific lands of the Santa Clara Association, and to foreclose a pledge of certain bonds secured by another and second mortgage or deed in trust. Afterwards, when the beneficiaries under the deed in trust, who were made parties to the action originally, intervened and filed a crosscomplaint seeking to foreclose their second mortgage or deed in trust, he was appointed receiver of all the property contained in both instruments, to carry on the quicksilver mines, borrow money, etc. There were other unsecured creditors, among whom was the plaintiff, Mary E. Staples, who could not get any satisfaction for their debts out of their debtor, the Santa Clara Mining Association, by reason of its insolvency, and the existence of the instruments above mentioned. But she brought suit against the association, obtained her judgment, and, by proceedings supplementary to the execution issued on her judgment under section 720, Code Civil Proc., sought the aid of the superior court to force May, the receiver, to pay her what she claimed was due her debtor, the mining association, from May, as a trespasser, in realizing money from a mine of the Santa Clara Mining Association which was not included in either of the mortgages for which foreclosure had been prayed, and in which action May was, as before stated, appointed receiver. The court below held that May, as receiver, had gone upon the property of the Santa Clara Mining Association which was not included in either mortgage; that he was not authorized to do so as receiver under the appointment of the superior court; that he did so as a trespasser; and that the net profits which he had realized out of the working of the quicksilver mine upon which he had trespassed amounted to the sum of $38,212, for which and interest he became liable to pay to the Santa Clara Mining Association of Baltimore, the mortgagor in the two mortgages, amounting in the aggregate to the sum of $46,414.84; and, being liable to that corporation, the plaintiff "is entitled to judgment against defendant for such proportion of the sum of $46,414.84, as the amount of her said judgment and interest thereon to date, towit, $6,593.19, bears to the said sum of $55,470.70, to-wit, for the sum of $5,515, and costs of suit." The theory of the case on which the court seems to have made its findings and decision, and upon which it refused the motion for a new trial, is that the court never had any jurisdiction over the particular part of the Guadeloupe mine, the mining property of the Santa Clara Mining Association, from whence the quicksilver sold by the defendant was taken; that the receiver never had any authority to enter upon it; and that whatever sum of money resulted over and above the expenses of mining the quicksilver was an indebtedness of May, as a trespasser, to the Santa Clara Mining Association, for which he was individually responsible to them, and which, being an indebtedness accruing to them, was the subject of such proceedings as are here initiated, and he must pay her share over to the plaintiff. This conclusion, it is contended by the appellant, is wrong, if the defendant is not justly indebted to the Santa Clara Mining Association, or if any such state of facts exists, as in equity and good conscience that association should not hold the defendant liable as trespasser; and it is urged that he should be held as one who, in the proper care of the other property of the association legally in his custody, was compelled to preserve that part of which he did have charge by the use of that of which he did not have control; thus benefiting the property of the Santa Clara Mining Association, increasing its value, and rendering it the more capable of paying the mortgage debts, and thus making it the more probable that the unsecured debts should be paid. We think that the facts shown by the record are that, at the time of the first appointment of the receiver, all the mining property of the Santa Clara Mining Association was a part of the same system of operations; that it was all held as the mining ground, for the one common purpose of extracting quicksil ver ore; that whatever quicksilver was extracted from one portion of the ground was rowed money, and applied it to the working of the whole property, thus benefiting the mining corporation, and it sat by, and did not object to receive such benefit, but took it in silence, we cannot see that it can now hold the acts of May in the premises those of a trespasser. Wise v. Walker, 81 Cal. 11-13, 20 Pac. Rep. 81, 22 Pac. Rep. 293, and cases cited. But, while this is true, there is another reason why May should not be held a trespasser, and responsible to the mining corporation. The second mortgage, or deed in trust, the one given to the Farmers' Loan & Trust Company of New York, which was a party defendant to the suit of foreclosure, and then, by intervention and a cross-com used, indiscriminately, when sold and converted into money, for the common benefit of the whole property; that the association, being a party to these foreclosure proceedings, knew when the receiver was appointed that he would take charge of the whole property; that it was in such a condition as that everything which could be gotten out of it, and every part of it, would be needed to preserve the property, and aid in paying its secured indebtedness; and that the receiver would use the whole of this property for that purpose. And, knowing all this, the mining corporation permitted him to take possession of all the property, to use it indiscriminately, to borrow money under the orders of the court, to carry on the whole mining industry, to work every part of it for the common ben-plaint, became a voluntary party thereto, was, efit of the whole, never once protesting or objecting, but, apparently, willingly allowing all the benefit which accrued by virtue of the acts of the receiver to go to the enhancing of the value of its property, and standing by, not only without objection to, but, to all intents and purposes, approving his acts; and, so far as this record shows, the corporation is still satisfied with and acquiesces in the acts of the receiver with reference to its whole property. Those who complain are persons to whom the mining association is indebted, and who cannot get their money unless they can show that, as a trespasser, the defendant did acts which the corporation considered a trespass, and not a benefit. The defendant, as receiver, has yet to repay many thousands of dollars of borrowed money used to develop and care for the property of the mining corporation, and borrowed under the authority of the court; yet the plaintiff claims that the proceeds of the quicksilver which the defendant extracted from one portion of the mine should go to her as the representative of the corporation whose property had been trespassed upon, and that the debts which he contracted under orders of the court, unobjected to by the mining corporation, and used to render more valuable its whole property, shall go unpaid from the proceeds of the corporation's property which this borrowed money assisted to bring into existence. The defendant has benefited the mining corporation by all his acts. That corporation was a party to the proceedings, stood by and allowed him, without any sort of check or sign of disapproval, to develop its property, make it more valuable, more capable of paying its creditors, and yet seems to affirm his acts, and makes no claim against him; but its creditors who are not secured claim that May is a willful trespasser, and should be made to hand over to them money, which they claim he wrongfully has, belonging to the mining corporation. That corporation was interested to have the property included in the McCalmont or first mortgage increased in value so as to go further towards the payment of the mortgage debt, by the preservation of such property by May; and, if he used the ore taken out of station 8 to do this, and bor as we think, a mortgage on all the interest Pet it did have possession and control of the land, under a claim of ownership recognized in the neighborhood; and in whatever way the land belonged to it, or by what right, that right was carried by the deed in trust. Upon the whole case, we do not think the court warranted in finding that May was a trespasser upon the property of the Santa Clara Mining Association, or that he is indebted to it in any sum whatever. Wherefore, we advise that the order be reversed. We concur: BELCHER, C. C.; GIBSON, C. PER CURIAM. For the reasons given in the foregoing opinion the order is reversed. BEATTY, C. J. Justice THORNTON is assigned to department 1 for the purpose of considering this case. (83 Cal. 588) NUNAN v. VALENTINE et al. (No. 12,663.) (Supreme Court of California. April 28, 1890.) APPEAL-DISMISSAL-SATISFACTION. A motion by appellants to dismiss their appeal on the ground that the judgment has been satisfied will be granted, though opposed by persons who claim to succeed to the rights of the respondent, and ask to be substituted on the ground that the alleged satisfaction was in fraud of their rights; leaving the question to be settled in the superior court, which is the proper forum. In bank. Appeal from superior court, city and county of San Francisco; WALTER H. LEVY, Judge. Wm. & Geo. Leviston, for appellants. Carl T. Graef and George D. Collins, for respond ent. BEATTY, C. J. In this case the appellants ove to dismiss their own appeal upon the ground that the judgment appealed from bas been satisfied. The motion is opposed by parties who claim to have succeeded to the rights of the original plaintiff, and who ask to be substituted as respondents, upon the ground that the alleged satisfaction of the judgment was entered in fraud of their rights. A number of affidavits have been filed relating to this controversy, but we do not think this the proper forum for its determination. A dismissal of the appeal will simply have the effect of affirming the judgment and remitting the questions as to the persons entitled to enjoy the fruits of it, and as to whether or not it has been satisfied, to the superior court, where they ought to be tried. We do not decide these questions, but we see no reason to deny the motion. Appeal dismissed, with costs to respondent. hood in consequence of bodily infirmities, idiocy, lunacy, or other cause," if having no relatives, shall receive relief from the county, and authorizes the commissioners to award contracts for the care of "the sick, poor, and infirm," and requires the county physician to examine each week all paupers, and to discharge those who are able to support themselves. Held, that a contract by the commissioners for the care of the "poor" of the county is void, as is also a contract for the care of the "sick and infirm;" the only contract authorized being for the care of the poor who are sick and infirm. 2. One contracting with county commissioners is charged with knowledge of the limits of their authority. 3. Though the contract sued on is void, the supreme court, on reversing a judgment for plaintiff, cannot order judgment for defendant where it is uncertain whether the jury allowed part of a counter claim, or reduced plaintiff's demand. Appeal from district court, Custer county; M. J. LIDDELL, Judge. Garlock, Strevell & Porter, for appellant. C. R. Middleton, for respondent. DE WITT, J. In December, 1882, the board of commissioners of Custer county purported to let to one John Clark a contract for the care of the sick and infirm of the county for the following year at the rate of $12 per week; and for the care of the poor of the county at the rate of $1.50 per week if cared for at the poor-house, and $7 per week if cared for in Miles City. The complaint alleges that, in pursuance to the contract, John Clark cared for such sick and infirm, by reason whereof the county became indebted to him in the sum of $6,098.87, including also his care for the poor to the extent of $13.50 at the poor-house, and $365 at Miles City; that this indebtedness was assigned by John Clark to the plaintiff. This constitutes plaintiff's first cause of action, on which he recovered judgment for nearly the whole amount; it appearing that for some reason the verdict was for $800 less than the demand. The county appeals from an order denying a new trial, and from the judgment. The action was upon the alleged contract, the validity whereof was attacked by defend ant, and to the admission of which in evidence numerous exceptions were taken and saved. The judgment was obtained on the contract. We will therefore first examine the validity of the contract. If made at all, it was made under authority of the statutes which were at that time found in Rev. St. 5th div. "Sec. 956. Every poor person who shall be unable to earn a livelihood in consequence of bodily infirmities, idiocy, lunacy, or other cause shall be supported by the father, grandfather, etc.: provided that, when any person becomes a pauper from intemperance or other bad conduct, he shall not be entitled to any support, except parent or child." "Sec. 958. When any poor person or persons shall not have relations, * then the said pauper shall receive such relief as the case may require, out of the county treasury, as is hereinafter provided, Sec. 959. The county commissioners of their respective counties shall, at their regular ses * * * * * sion in September of each year, make an order directing the clerk of the board to publish a notice in a newspaper inviting sealed proposals for the care, support, and maintenance of the sick, poor, and infirm of the county, per capita, by the week, for the succeeding year," etc. "Sec. 960. Said proposals shall be addressed to the clerk of the board of county commissioners, and the said commissioners shall at their December term, open and carefully compare said bids or proposals, and shall award the contract for the care, support, and maintenance of the sick, poor, and infirm of the county, by the week, per capita, to the lowest responsible bidder for the ensuing year." Section 962 provides that the county physician shall "examine each week all persons who are or may become a charge upon the county; and if, after such examination, he shall be satisfied that the physical condition of such person or persons is such as to enable such person to support and maintain himself or herself, he shall so notify the contractor or contractors having such person or persons in charge." The statute provides for the form of the notice, and filing a duplicate, and then says: "And after the serving of said notice, and filing the duplicate thereof with the clerk, said person mentioned in said notice shall cease to be a charge upon said county." Id. They are creatures of the law, and not of nature. They have not natural rights, but only rights given by the law. Their contracts obtain validity only by force of the law authorizing their making. It follows that, if they make contracts that the law does not empower them to enter into, there is no authority for such contract,—nothing for it to stand upon,—and it falls of its own weight. It is void. Parr v. Village of Greenbush, 72 N. Y. 463; Head v. Insurance Co., 2 Cranch, 127; Bonesteel v. Mayor, 22 N. Y. 162; Foster v. Coleman, 10 Cal. 279; Zottinan v. San Francisco, 20 Cal. 96; Argenti v. San Francisco, 16 Cal. 256; City of Alton v. County of Madison, 21 Ill. 115; Dill. Mun. Corp. § 381; Thomas v. Richmond, 12 Wall. 349; Clark v. Des Moines, 19 Iowa, 209; Loker v. Brookline, 13 Pick. 348; Philadelphia v. Flanigen, 47 Pa. St. 27. Persons contracting with such artificial creations of the law as municipal corporations and public officers are charged with notice of the character and constitution of the entity with which they deal. They know the law, and know what are valid acts of such artificial persons. They contract at their peril. The assignee, as plaintiff herein, of a claim against such municipal corporation or public officer arising out of an alleged contract with the same, has the same notice as the original contractor. He knows the character, powers, and constitution of the contractor. See cases last cited. If the contract in question were void, the plaintiff cannot recover thereon. The only authority that the commissioners of Custer county had to make the contract is found in the statutes above cited. We observe, in limine, that the chapter of the Revised Statutes from which the citations supra are made is entitled "Poor," and the It appears in evidence, from the records of the board of county commissioners for the December meeting, 1882, that bids were filed by divers persons for the care of the sick, poor, and infirm; that John Clark filed separate bids as follows: "John Clark proposed to care for the sick and infirm for the consideration of $12.00 per week per capita, and for the poor for the consideration of $1.50 per week per capita at the county poorhouse, and for the poor for the considera-original act is entitled "An act to provide for tion of $7.00 per week per capita in Miles City." These bids were accepted. As far as it is necessary for us to here consider the matter, these bids and the acceptance, constituted the contract upon which plaintiff sues. For the services alleged to be rendered under this contract, the claim for which services was assigned to plaintiff, plaintiff obtained his judgment on his first cause of action. The defendant, in its answer, alleges fraud, collusion, and connivance between Clark, plaintif, and the members of the board of commissioners. No evidence of this, however, was introduced except as it may appear on the face of the contract. Defendant also sets up a counter-claim in a large amount, in regard to which there was testimony. We will first determine whether the contract which, as we have said, was the foundation of plaintiff's first cause of action, was valid. The contract was made with public officers, with the commissioners of Custer county. An individual may contract as to lawful subjects as he pleases. Municipal corporations or public oflicers are bound by the law. They are authorized by the law of their creation to make certain contracts. the support, care, and maintenance of the county sick and poor," approved February 11, 1876. In viewing the whole act, we are of opinion that the intent of the law is easily ascertainable. The county is to care for 'poor persons who shall be unable to earn a livelihood in consequence of bodily infirmity," etc. The statute does not command the county to care for the "poor" simply. If so, the state would readily become a popular place of residence for the healthy, able-bodied, lazy beggars of the world. If one be poor in purse, but wealthy in brawn or brain, he is not to be a charge upon the county. The statute, section 962, supra, provides that when a person properly in charge of the county ceases to be "sick and infirm," although he still remain "poor," he shall no longer be maintained by the county; and, to guard against fraud and imposition by physically vigorous paupers and dishonest contractors, it is provided that the county physician shall examine such persons, and, if they be able physically to take care of themselves, return them to their own resources. Section 962, supra. This is a plain declaration of the law that the county commissioners shall not sup port and care for persons whose only claim on public bounty is their poverty. To give them such a claim, other ills must be present. They must be unable to earn a livelihood by reason of sickness, infirmity, or other cause; and they must have come to their deplorable state by misfortune, and not by vice. Section 956, supra. It was never contemplated that the state should care for all the poor, without regard to the condition of such poor as to ability, health, strength, and virtue. The purview of the statute is clearly against such a construction. We are therefore of opinion that the alleged contract between John Clark and the commissioners of Custer county for the care of the poor of the county is void. Again, the contract to care for the sick and infirm is equally obnoxious to objection. We cannot construe the statute as requiring or authorizing the county commissioners to care for the "sick and infirm," as such alone. The wealthy and the well-to-do "sick and infirm" must care for themselves, from their own opulence or competency, and not live upon the taxes collected from their neighbors. Sickness and infirmity, under the statute, confer no claim upon the state. It is only when they are joined with poverty that the claim arises that is supplied from the store-house of a bountiful state. We come, therefore, to the conclusion that the contract between John Clark and the commissioners of the county for the care of the sick and infirm was wholly unauthorized by the law, and void. Johnson v. Santa Clara Co., 28 Cal. 545; City of Alton v. County of Madison, 21 Ill. 115. We have above noticed that the defendant county alleges fraud and collusion between John Clark, the plaintiff, and the county commissioners, in the matter of these contracts. The face of the record of the proceedings of the board of commissioners is the only evidence under this allegation, and by that the letting of the contract seems to be a cunningly devised fable to avoid the .plain intent of the law. This view is not altered when we observe that the poor at the poor-house cost $13.50, and the sick and infirm nearly $6,000. The contract that the commissioners were authorized to let was one for the care of such persons as were poor, and therewith sick and infirm. What they did do was an evasion of the plain intent of the law, and their alleged contract is void. No recovery can therefore be had under plaintiff's first cause of action. tion of the counter-claim. To determine this matter, the case must go back to the district court for a new trial. BLAKE, C. J., and HARWOOD, J., concur. (9 Mont. 267) DAVIS v. DAVIS. (Supreme Court of Montana. Feb. 10, 1890.) ATTORNEY IN FACT-CONVEYANCES TO HIMSELFEQUITY PLEADING-COUNTER-CLAIM-ESTOPPEL. 1. A conveyance by an attorney in fact of land of his principal to himself, through a third person, is invalid. 2. Where an attorney in fact has conveyed to himself land covered by his power of attorney, an answer, in a suit by his principal to set aside the deeds, that the land was originally bought by him and plaintiff, he furnishing the money for plaintiff's share, though title was taken in plaintiff's name, sets up new matter connected with the subject of the action, within Code Civil Proc. Mont. $$ 89, 90, and is therefore a good defense or counterclaim. 3. Though the prayer of defendant's answer is that he be discharged, relief may be given thereon as a counter-claim. 4. An attorney in fact, by accepting a power of attorney, and attempting to convey thereunder land of his principal to himself, is not estopped from asserting an equitable title thereto previously vested in himself. Appeal from district court, Lewis and Clarke county; H. N. BLAKE, Judge. Carpenter, Buck & Hunt and Massena Bullard, for appellant. Sanders, Cullen & Sanders, for respondent. DE WITT, J. The complaint alleges that on the 1st day of December, 1882, plaintiff, being about to leave Montana, gave to the defendant, Joseph Davis, a power of attorney, authorizing him to sell and convey the real estate of plaintiff in Lewis and Clarke county, said territory. That plaintiff was then the owner of several described tracts of real estate in said county. The power of attorney was duly recorded February 2, 1885. On February 20, 1885, the defendant, contriving to cheat plaintiff, and without consideration, conveyed said premises by two deeds to defendant Bennet Price. Those deeds were executed, "LEWIS DAVIS, by JoSEPH DAVIS, His Attorney in Fact." They were acknowledged and recorded. That, in furtherance of defendant's purpose to defraud plaintiff, said Price, on February 21, 1885, without consideration, conveyed said premises to Joseph Davis. The deeds are all pleaded in the complaint. That said transactions between Joseph Davis and Price were said deeds be declared void, and that the title to the premises be adjudged to be in the plaintiff. The answer contains some denials, which we need not consider in this decision. It then sets forth a separate defense, sepa It is unnecessary to examine the case fur-fraudulent and void. Plaintiff prays that all ther. The judgment and the order denying the new trial must be reversed, and the case remanded; and the same is hereby ordered. This court cannot order judgment entered in the district court, as appellant requests. Appellant pleads and insists upon a counter-rately stated, which may be substantially claim larger than the plaintiff's demand. The judgment of the court below was for less than the plaintiff's demand. It is impossible for this court to say whether the jury cut down the demand of the plaintiff, or allowed a por stated, with the legal effect claimed, as follows: That the premises in controversy, or so much thereof as is necessary to notice in this consideration, were originally purchased by Lewis Davis, Joseph Davis, and another., |