such stock is a "device" on the part of the railroad companies to evade the Act of 1855 must be submitted to a jury, the consequences might be very serious and destructive of vested rights. To say the least, it would introduce an element of uncertainty into the titles to a large amount of property which it would be difficult for a purchaser to protect himself against. The possibility of such results admonishes us to move with caution, and to hesitate ere we finally adopt a principle which may lead to such confusion. This section of the Act of 1855 is a distinct declaration by the law making power that shares of stock held in a mining company are personal property, and create or give no title to the holder of such shares in or to any of the real estate held by such company. How, then, is it possible to escheat it as real estate belonging to or held for the company owning the shares? The law having fixed its character I do not see how the parties can change it even by a "device." If there is anything that is clear in this case it is that the defendant Railroad Company has no title, legal or equitable, to this land. Its whole title thereto, in fee simple, passed by the conveyance to the Northwestern Mining & Exchange Company. Attention is again called to the Act of 1855, and at the risk of being The Act of April 8, 1881 (Pub. Laws, 9), prolix I repeat it: "No corporation shall here-enacts that "where any conveyances of real after acquire and hold real estate within this estate in this Commonwealth have been made Commonwealth directly in the corporate name, by any alien, or any foreign corporation or coror by or through any trustee or other device porations of another or of this State, to any whatsoever, unless specially authorized to hold citizen of the United States, or to any corpor such property by the laws of this Common-ation chartered under the laws of this Comwealth." monwealth, and authorized to hold real estate, before any inquisition shall have been taken against the real estate so he'd to escheat the same, such citizen or corporation grantee as aforesaid shall hold and may convey such title and estate indefeasibly as to any right of escheat in this Commonwealth, by reason of such real estate having been held by an alien, or a corporation not authorized to hold the same by the laws of this Commonwealth." While I do not consider this Act important in the determination of this case, as the contention of the Commonwealth cannot be sustained for the reasons already given, it is proper to say that it appears to condone the alleged offense so far as the Legislature may lawfully do so. It removes the penalty of escheat imposed by the Act of 1855. It may be said, however, that it is controlled by section 10 of article 17 of the Constitution, which declares: "No railroad, canal or other transportation company, in existence at the time of the adoption of this article, shall have the benefit of any future legislation by general or special laws, except on condition of complete acceptance of all the provisions of this article." In the absence of any evidence that the defendant Company had accepted the provisions of the above article, it is urged that it cannot claim the benefit of the Act referred to. It will be observed that the prohibition of the Act is of a threefold character, viz.: (a) holding real estate in its corporate name; (b) by means of a trustee; and (c) by any device whatever. It must be conceded, indeed it is not denied, that there is no violation of the first two prohibitions. It is equally clear to my mind there is no violation of the third, for the reason that the Railroad Company has, as before stated, no title to the real estate of any kind. If it has no title how can it hold title by a "device?" The only answer that has or can be made to this is that the Company controls said real estate. If we concede this proposition, where in the Act of 1855 is there to be found a prohibition of a railroad company controlling the use of real estate? The Act strikes only at the holding of the title, and as it is a highly penal statute, penal to the extent of practically confiscating all real estate held in violation thereof, we are not at liberty to extend it beyond its terms. The Legislature may have had good reasons to prohibit railroad companies from holding the title to large bodies of mining lands. They may not have had the same reasons to move them to probibit all control over them. At any rate they have not done so, which is sufficient for our purpose. As before observed, this is a question of escheat. It must be manifest that before there can be an escheat of these lands under the Act of 1855, it must appear that the defendant Railroad Company holds the title thereto in its corporate name, or by or through a trustee, or by some device, by means of which said Com-relating to railroads and canals. This question, pany not only controls the lands but enjoys the beneficial ownership thereof. In other words it must have either the legal or the equitable title or it has no title whatever. If it has no title there can be no escheat of the lands as real estate. The third section of the Act of 1855, which does not appear to have been heretofore called to our attention, provides that "the shares held by shareholders in all incorporated land and building associations, and mining and manufacturing companies, shall be taken to be personal property, confer It is doubtless true that before a railroad company can enjoy the benefit of new legislation, enlarging its powers or increasing its facilities, it must formally accept all of the provisions of the 17th article of the Constitution however, is not raised. The Act of 1881 is in the way of the Commonwealth. No one doubts that the Act of 1855, imposing the penalty of escheat, could at any time have been repealed by the Legislature. The repeal of the Act would have been an answer to this proceeding. The Commonwealth would have nothing to rest it upon. The Act of 1881 does not in terms repeal the Act of 1855, but it removes the penalty. This information was not filed until several years after the passage of the Act of 1881. Nor had any inquisition been taken against the real estate in controversy until after it had been conveyed to the North western Mining & Exchange Company. The case comes, therefore, precisely within the terms of the Act of 1881, and were we in doubt as to our former position, we might well affirm the judgment upon this ground alone. We have considered this case solely upon the power of the Commonwealth to escheat the lands. No question is raised under the constitutional provision referred to, and noue is decided. Judgment affirmed. Sterrett and Clark, JJ., dissent. v. OREGON SUPREME COURT. William M. KILLINGSWORTH, Appt., PORTLAND TRUST CO., of Oregon, Respt. (....Or.....) *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 relations between it and its instrumentalities are as one legal entity or artificial person in the performance of its engagements, and involve no delegation of powers. Held, therefore, that a corporation has capacity to execute a deed as attorney in fact for another. (January 13, 1890.) APPEAL by plaintiff from a judgment of the Circuit Court for Multnomah County in favor of defendant in an action to recover damages for breach of a contract for the sale of certain real estate. Affirmed. The case sufficiently appears in the opinion. Messrs. Sears & Beach, for appellant: A corporation in this State is inherently incapable to execute a deed as attorney in fact for the following reasons: First. It cannot execute or acknowledge a deed except through agents. Story, Ag. 116; Morawetz, Priv. Corp. $357; Georgetown College v. Browne, 34 Md. 450; Re Thompson's Estate, 33 Barb. 334. Second. An agent appointed by power of attorney to sell and convey land cannot delegate his or its power at all, unless a power of substitution is given. Lord, J., delivered the opinion of the court: 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 attorStory, Ag. SS 13, 14. Third. Where the right of substitution isney in fact of one Deborrah H. Ingersoll, in given it would have to be exercised by execut- compliance with said agreement, that it did ing and acknowledging the substituting instru- execute and tender to the plaintiff a conveyance ment with the same formalities as those under of said premises, etc., and now brings it into which the original power is executed. 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 Stinchcomb v. Marsh, 15 Gratt. 202. Mr. George H. Williams, with Messrs. Woodward & Woodward, for respondent: Corporations on full compliance with the statutes respecting their organization become legal entities, with power to do and to act, and to the extent of the powers conferred by the charter of such corporation can perform all acts which a natural person might do to accomplish the same end. Barry v. Merchants Exch. Co. 1 Sandf. Ch. 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 beand any persons may avail themselves of it by come incorporated is secured by a general law, complying with its provisions. Corporations which owe their existence to the common law organization, in the manner of exercising their must be governed by it in the mode of their powers, and in the use of the capacities conferred. But the Legislature may authorize the creation of corporations for many purposes not contemplated by the common law, and endue them with powers and capacities to be exer cised in disregard of its rules, or which may | State does not require the administrator to take greatly extend, modify or limit their common- an oath. It was so held in Deringer v. Deringer, law powers and privileges. The measure of 5 Houst. 416. So, too, in Lincoln Sav. Bank v. the legislative power in this regard is limited Ewing, 12 Lea, 602, where it was urged that a only by circumstantial provisions. Ordinarily, corporation was incapable of taking to itself a in the creation of corporations, the common- mortgage or trust conveyance, it was held that law incidents and powers are implied, unless a corporation may take and hold as a trustee or otherwise provided or restrained by the law of mortgagee, and execute a trust in which it has its corporate existence. But, in determining an interest, within the scope of its business; the nature and extent of the powers and capac- and a failure or inability to comply with the ities conferred on a corporation, and the mode provisions of the Code by taking the required of their exercise, the law of its creation, wheth- oath would not affect the validity of the deed, er a charter or a statute, must be consulted; or the title vested. 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 seeks 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 Morawetz, Priv. Corp. § 357. The reason why a corporation was unable to perform the office of executor or administrator, as stated by Blackstone, was that it could not take an oath for the due execution of the office. 1 Bl. Com. 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 officers may take it, or the law of the State may not require any oath for the due execution of the oflice; and in such case, where no other impediment intervenes, a corporation may act as administrator when the law of the As it is not questioned that the business in which the defendant is engaged is a lawful occupation, and that the articles of incorporation are suflicient to confer the power on the defendant to act as an attorney in fact in furtherance of its legitimate objects, there is nothing to prevent it from doing the acts essential to carry on its business, and comply with the terms of its agreement, unless it is incapable of performing such acts from some cause inherent in itself. A corporation, like a natural person, has a right to conduct its legitimate business by all the means necessary to effect such object. Within its prescribed range, it can do whatever a natural person mutatis mutandis could do. Wharton, Ag. $ 57. In Barry v. Merchants Exch. Co. 1 Sandf. Ch. 280, it is said: "Every corporation, as such, has the capacity to take and grant prop erty, 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 prohibit ed 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 other corporation. Many of the great corporations of the country are organized for this express purpose, under statutes or charters conferring and defining their powers, and the methods of executing them; but even in other cases, authority so to act might be implied as auxiliary to their main purpose." Mechem, Ag. $ 64. " It is clear, then, that a corporation may act as the agent of another; and, if so, it must be endued with the faculties or instrumentalities to perform the office it is authorized to undertake, and carry out the purposes of its creation. In fact, within the same principle of reasoning, it may be said that a corporation cannot make a deed of its own property; but we know it can, and that the act of its officers in so do When a corporation engages in a legitimate, Brace, 51 Md. 508; Am. & Eng. Cyclop. Law, business, and is authorized by its incorporation Acknowledgment, Corporations. to do the things necessary to carry on such business, it is an express grant of power to enable it to effect that object. If it is to be excluded from doing such things because, from the nature of its organization, it cannot acting is the act of the corporation. personally, but only through agents, there would be little left in the domain of business it could do. As was said by the court in Hopkins v. Gallatin Turnp. Co., 4 Humph. 412: "The common-law rule with regard to natural persons, that an agent, to bind his principal by deed, must be empowered by deed himself, cannot, in the nature of things, be applied to corporations aggregate. These beings, of mere legal existence, and their beard, as such, are, literally speaking, incapable of a personal act. They direct or assent by vote; but their most immediate mode of action must be by agents." Being a creation of the law,—an artificial person,-it can only act by agents, who are its limbs, or instrumentalities to effect the purpose for which it was organized, and to act for it, their act being the act of the corporation, exactly as the act of an individual is his act. As such, upon the principle of the objection raised, it could not make an acknowledgment in person, but it may by its officers; and in such cases its officer affixing the seal is the party executing the deed, within the meaning of the Statute requiring deeds to be acknowledged by the grantor. Kelly v. Calhoun, 95 U. S. 711 (24 L. ed. 544]; Frostburg Mut. Bldg. Asso. v. When a corporation is made the agent of another to sell and convey property, it acts through the same instrumentalities as when acting for itself; and the relation between it and its instrumentalities are as one being or artificial person in the performance of its engagement, and involves no delegation of powers. So that, when a corporation is invested with a power of attorney to sell and convey real property, the person conferring the power knows that the corporation cannot act personally in the matter, but that in performing the engagement it will act through its agents, who for that purpose are its faculties, and whose acts in the discharge of that duty are the acts of the corporation, and as such must be considered to be included in the artificial person, as instrumentalities authorized by him to do the act conferred upon it by his power of attorney. In this view, the argument that the corporation cannot do such act, under the power of attorney, without a delegation of authority to its agents, and that the grantor of the power has given no such power of substitution, cannot be sustained. There was no error, and the judgment must be affirmed. FLORIDA SUPREME COURT. Annie M. PRENTISS et al., Appts., V. Hugh S. PAISLEY et al. (....Fla.....) *1. A bill of review, for error of law apparent upon the record, will lie, although the decree *Head notes by RANEY, Ch. J. NOTE.-Wife's capacity to contract. As to the wife's disability to contract, see notes to Speier v. Opfer (Mich.) 2 L. R. A. 345; Roop v. Real Estate Invest. Co. (Pa.) 7 L. R. A. 211; Cook v. Walling (Ind.) 2 L. R. A. 769. The existence of the wife is merged in that of the husband, and a contract binding herself personally, or subjecting her to a judgment in personam, is void. Spencer v. Parsons, 11 Ky. L. Rep. 769. A married woman cannot be sued at law in an action ex contractu, except where such suit is authorized by express legislative enactment. Davis v. Carroll (Md.) 18 Atl. Rep. 965. A contract which could not have been enforced against a married woman if living cannot be enforced against her estate. Ibid. Where coverture is pleaded to a contract it is proper, in the reply, to show that the contract is one a married woman has power to make. Arnold v. Engleman, 1 West. Rep. 483, 103 Ind. 512. Late decisions from various state courts: A married woman, in California, is incapable of contracting a personal obligation except in cases provided by statute. Norton v. Meader, 4 Sawy. 604. 7 L. R. A. sought to be reviewed is a final decree, consequent upon a decree pro confesso, for failure of the defendant to plead. 2. Where the bill does not justify the final decree following the decree pro confesso, a bill of review for error apparent upon the record is a proper remedy for relief in the court rendering such decree, and an appeal the remedy through the appellate court. Under the Civil Code Under Civ. Code, a married woman may enter into any agreement or transaction respecting her property which she might if unmarried. She may mortgage or convey it by deed of trust to secure the debts of her husband, and, having done so, his creditors may enforce their claims against it in the same manner and to the same extent that they could if it were his property, and not hers. Burkle v. Levy, 70 Cal. 250. District of Columbia. The common-law disability has not been removed in the District of Columbia (Ritch v. Hyatt, 3 MacArth. 536); but a married woman may contract to repair her house, or to put it into rentable condition. Harmon v. Garland, 1 Mackey, 1. Florida. Though the wife may conduct a mercantile business in Florida, and the husband may act as agent for her in that business, yet she cannot make a contract herself or by him as agent on which she will be personally liable. McQuaid v. Fontane, 24 Fla. 509. To determine whether the credit was given to 8. disqualify a husband from acting as the agent of his wife with reference to her separate estate. The person in whom the legal title to property is vested in trust for a married woman is a necessary party to a bill seeking to charge the property with the payment of money paid to her. 3. A married woman is by the common | 7. The marital relation does not of itself law incapable of making a contract that will bind her personally, either in law or equity; and for this reason there cannot, in the absence of legislation changing the common law, be a judgment or decree against her personally for the recovery of money, as distinguished from a decree charging her separate equitable estate, or other property, with the payment of money. No exception to this rule is created by the existence of a marriage contract between husband and wife giving her the right to control and manage her separate estate and property the same as if she had remained unmarried. (January 13, 1890.) APPEAL by plaintiffs from an order of the Circuit Court for Marion County dismissing a bill for review of proceedings in which a per4. A married woman is personally lia-sonal decree was entered against a married ble for her civil torts, including such frauds as do not grow out of, or are not directly connected with, or a part of, a contract which she has undertaken to make. 5. Wherever coverture avoids a contract which a wife has attempted to make, it likewise bars a personal recovery against the wife on the ground of the fraud connected therewith; and the bar cannot be overcome by suing her in an action ex delicto. woman, and refusing to enjoin the sale of her separate property for the enforcement of such decree. Reversed. Hugh S. Paisley filed a bill against T. D. C. Prentiss and Annie M. Prentiss his wife, alleg. ing misrepresentation and fraud on the part of defendants in selling to plaintiff certain land alleged to contain orange trees, but which in fact had no such trees on it and was of very little value. 6. It is error to decree a recovery of of sale, a cancellation of the bond for title, a He prayed a rescission of the contract money of or against a married woman person-delivery up of the notes given for the purcontract for the sale of land on the ground of chase money and a judgment against defendfraud, and to recover the amount of a cash pay-ants for the amount of the purchase money ment made thereon by the complainant. already paid. ally, in a suit in equity instituted to set aside a But she may render herself liable for things bought by her for family use. Ibid. Yet she is not liable upon a contract for the board of herself and husband. Ibid. She cannot make a valid contract for the erection of a building upon the joint property of herence to her sole or separate property. Curtis v. self and husband, but can contract only with referCrowe (Mich.) 41 N. W. Rep. 876. made on behalf of her sole property. Mutual Ben. A contract in writing to bind her must have been L. Ins. Co. v. Wayne Co. Sav. Bank, 12 West. Rep. 535, 68 Mich. 116. The statutes do not authorize a wife to become personally liable on an executory promise except concerning her separate estate. Kenton Ins. Co. v. McClellan, 43 Mich. 564: Reed v. Buys, 44 Mich. 80; Edwards v. McEnhill, 51 Mich. 160; Harvey v. Galloway, 48 Mich. 532; Richards v. Proper, 44 Mich. 96; Wilson v. Coolidge, 42 Mich. 112; Gantz v. Toles, 40 Mich. 725. Minnesota. The capacity of married women to be bound and estopped by their conduct is incident to their enlarged power to deal with others, under Minnesota statutes. Dobbin v. Cordiner (Minn.) 4 L. R. A. 333. Mississippi. The statutes in Mississippi in relation to married women have not relieved a wife from common-law disabilities to make contracts. Canal Bank v. Partee, 99 U. S. 325 (25 L. ed. 390). With certain exceptions a married woman cannot bind herself by any covenant, nor can she be bound by the covenants of her trustee in a deed of separation; nor can she, in consideration of such separation, convey or release to her husband her claims on his estate. Stephenson v. Osborne, 41 Miss. 125. In Mississippi, unless a married woman has a separate estate, she is subject, as to her contracts, to the disability of coverture. Canal Bank v. Partee, supra. A personal judgment against a married woman, in an action against her on her promissory note, is a nullity under the laws of Mississippi. Ibid. |