Barcello v. . Hapgood

Avery, J.: The action was brought to rescind a certain contract whereby the defendant Hapgood covenanted to convey to the plaintiff, Francis A.Barcello, 550 acres of land in Burke county known as “ Hancock Gold Mine,” on account of defect of defendant’s title, and for the recovery of two thousand dollars, purchase-money, already paid ■by the plaintiff and the amount expended in improvements on the land, less the profit realized from working a gold mine thereon. The defendant denied the allegations. The controversy has narrowed down to the question whether the defendant could make a good title to three •out of the five tracts of land described in the contract, to-wit, the three-hundred-acre-tract, the one-hundred-acre-tract and the eight-acre tract. The title deeds, which gave rise to the exceptions as to ■form of probate and power of agents to execute, were those •offered by the defendant Hapgood to show that he was able to specifically perform his contract. “ It is usual,” said the Court in Rowland v. Thompson, 73 N. C., 504, for sales made by order of the Court of Equity to be public sales; but the court, as the guardian of infants, has full power in regard to the mode of sale, and, under special •circumstances, not only has power but should, in the exer- ■ cise of its discretion, authorize and confirm what is called a private sale ; that is, a sale without advertisement and public outcry.” It is settled by a number of adjudications “ that The Code has not taken away from the supe' *726 rior courts the jurisdiction heretofore exercised by Courts of Equity. Wadsworth v. Davis, 63 N. C., 251; Wilson v. Bynum, 92 N. C., at p. 717; Clement v. Cozart, 107 N.C., 695; State & Guilford Co. v. Ga. Co., 112 N. C., 34. In 1880, when Rachel Peatson, as guardian of her infant children, filed the petition before the cleric of the superior court, he was’ acting in the capacity of probate-judge and authorized to take jurisdiction of the special proceeding, under what is now Section 1602 of The Code,. which, since the enactment in its present shape in 1885,. confers the same authority on him as clerk. But though he could take cognizance of it, his right to do so was not exclusive, but, under the rule laid down in the cases-already cited, concurrent with that of the superior court in the exercise of the powers of a Court of Equity. The superior court had general jurisdiction both of the persons-who were parties, and the subject matter of such a proceeding, it being equitable in its nature, (Houston v. Houston, Phil. Eq., 95 Ex-Parte Dodd, Ibid., 97; Harrison v. Bradley, 5 Ired. Eq., 136) and a third person purchasing in good faith at a sale made under the decree of the superior court, signed by Judge Gilmer, and relying upon, the stability of that judgment, got a good and indefeasible-title. Sutton v. Schonwald, 86 N. C., 203; England v. Garner, 90 N. C., 197; Branch v. Griffin, 99 N. C., 173; McIver v. Stephens, 101 N. C., 255. The purchaser was not bound to look behind the judgment of the higher-court and pass upon the irregularity, if the signing of the-decree of sale upon, the coming in of the report of the-referee, by the judge of the superior court instead of by the judge of probate, subject to the approval of his.superior, was in fact not in accordance with the regular-course of the court. The sale was not only made- *727 under an order of a court having gen eral jurisdiction both of tbe parties and the subject matter, but it was made after careful inquiry by a referee, and a report by bim that the interest of the infants would be promoted by a sale. Harrison v. Bradley, supra. The making by the probate judge of an order confirming this report on its coming in, instead of making the order of sale, was but an irregularity which does not subject the proceeding to collateral attack, and which, if a direct attack was made, would not affect the validity of the title acquired under the decree, if the purchaser were a stranger to the record. Section 1590 of The Oode is the Act of 1794, Ch. 413, Sections 1 and 2, and has been in force since its first enactment, (Rev., Statutes, Oh. 54; Rev. Code, Ch. 54, Sec. 26'; Bat. Rev., Ch. 54, Sec. 27,) and being apart of the statute law, it is manifest that the court has always construed it as referring to sales other than judicial. It was intended as a restriction upon the discretionary power of the guardian, not upon the authority of a court of chancery having the supervision and oversight of their conduct. .The evil intended to be remedied by the statute was not the abuse of power by the court, but by guardians when not acting under the restraint of its orders. The statute (Oode, Sec. 640) confers upon clerks of courts of record in other states the powers both of commissioners affidavits and of deeds, and of commissioners regularly appointed by the courts, and the courts will take judicial notice of their seals. Hinton v. Ins. Co., 116 N. C., 22. Commissioners of affidavits are empowered, under Section 632 of The Oode, to take acknowledgments of deeds in other states by residents both of this State and of that for which such commissioners are appointed. Buggy Co. v. Pegram, 102 N. C., 240. Willard, the clerk of Suffolk court, therefore, had authority to take the probate, and *728 upon the adjudication by the clerk of the superior court of Burke couitty that it was correct, it was properly admitted to registration. Buggy Co. v. Pegram, supra. For the same reason the same clerk was empowered to take the acknowledgment of the grantor Barton to Hapgood, and it is needless to cite authority to show that the acknowledgment that the “ foregoing instrument was his free act and deed ” was sufficient in law. The certificate of Hallybur-ton, clerk, that B. S. Gaither, the subscribing witness, appeared before him, “ and the due execution of the annexed deed was duly proven ” by him, was also sufficient to authorize the order of registration and the recording of the deed. While a foreign corporation is not authorized to exercise powers in another state not granted in its charter, (Diamond Match Co. v. Powers, 51 Mich., 145; Bank v. Godfroy, 23 Ill., 579,) yet where the privilege of holding real estate is therein conferred, it may, under the rules of comity, buy, hold and sell land to the same extent that domestic corporations are authorized to deal in it, and, whether foreign or domestic, if authorized to hold land at all, they have all of the powers of an individual in relation to it, except in so far as they are expressly restricted by law. Lancaster v. Improvement Co., 24 L. R. A., and note —140 N. Y., 576; Com. v. Railroad, 15 Am. St. Rep., 724, and note —129 Pa. St., 463; Blair v. Ins. Co., 47 Am. Dec., 129, and note—10 Mo., 559; Ducat v. Chicago, &c., 95 Am. Dec., and note— 48 Ill., 172; 6 Morawitz Pr. Corp., Secs. 960 to 965. The corporation was created for the purpose of “ mining and milling of gold and other minerals, especially in Silver Creek township, Burke Go., N. 0.,” where it appears that the company is operating. It is a familiar rule, applicable to both public and private corporations, that, while the grants of authority from the state to them are construed strictly,'they can nevertheless exorcise not only the powers *729 •expressly given and such as are fairly implied in or incident to those given, bnt sneli as it is indispensably necessary to exercise in order to the enjoyment of the privileges expressly given. In other words, the authority to use the means necessary to attain the main objects for which they are formed must be supplied by implication. 1 Morawitz, supra, Sec. 320; 1 Spilling Pr. Corp., Secs. 63, 83. A corporation has the implied right tó acquire and hold not only such property real or personal, as may be actually necessary for carrying on the business for which it was formed, but such as may be reasonably expected to prove useful and convenient in attaining its legitimate ends. 1 Morawitz, supra, Sec. 327. The general rule is that foreign corporations may acquire real and personal property, such as tracts of land for the purpose of mining, as in this ease, like domestic corporations, where it is necessary or convenient in carrying out the express purposes for which they were created. 2 Morawitz, supra, Sec. 961. It is manifest that a company formed for the purpose of mining and milling would find it convenient, if not absolutely essential, to buy the land upon which it proposes to conduct its business, and where the acquisition would prove useful, in the absence of any law re-enacting the Statutes of Mortmain in this State, neither domestic nor foreign corporations are prohibited from buying land in furtherance of the oojects for which they were created. Malett v. Simpson, 91 N. C., 41. "Where, however, it is doubtful whether the right to h Id land comes within the purview of its powers, that question can be raised as against any corporation exhibiting title to realty only by a proceeding authorized by the State. Mallett v. Simpson, supra; Bass v. Navigation Co, 111 N. C., 439. A'private corporation, organized for the benefit of its stockholders, is not restricted by duties to the public, as is a quasi public cor *730 poration, but is authorized to dispose of any of its property, real or personal, whenever it may find it expedient to-do so in carrying out its business. 1 Morawitz Pr. C., Sec. 335. A conveyance of the property of a corporation, like that of an individual, may be executed “ through any agent having authority to represent the company for that purpose.” 1 Morawitz Pr. Corp., Sec. 335. Citing Bason v. Mining Co., 90 N. C., 417, and Morris v. Keel, 20 Minn., 531, Morawitz says (in the section last cited) that a statutory method of alienation bj’ corporations like that -provided by statute in North Carolina {The Code, Section 685} is not exclusive of the common-law mode of conveyance, and does not prohibit other methods of execution by authorized agents.” The rule as stated by Morawitz is founded upon the right to dispose of property, which is always incident to ownership by individuals, and also by corporations, except in so far as they are restrained by express statute or by public policy, as where they owe a duty to the public and the alienation of property may incapacitate them for its performance. 1 Beach Pr. Corp., Sec. 357; Logan v. Railroad, 116 N. C., 940. The extraordinary powers of a corporation, such as that of selling or-1 easing the corporate property, where it exists, belongs-primarily to the stockholders, (1 Beach, supra, Sec. 73,) but may be delegated by them, as it can be by an individual, to the directors or to an agent designated in the resolution of the body, either by his official title or his name. 1 Morawitz, supra, Sec. 325. The resolution of the corporation was in the nature of a power of attorney to convey land, and therefore it was proper to prove and register it in this State. _ The signature of the secretary who is the-proper officer to affix the seal where no special authority to do so is conferred on another, was acknowledged by *731 him. The resolution, certified to be a part of the minutes, is therefore prima facie the act of the corporation.. 4 Thompson Corp., Secs. 5054 and 5055; Duke v. Markham, 1 8 Am. St. Rep., 889, and note — 105 N. C., 187. The law assumes that the proper officer did not exceed his authority, (Morris v. Keel, supra), and that the certificate of the genuineness of the extract from the proceedings is. true. Railroad v. Lea, 12 La. Ann., 388. The Great Seal of the State of Maine requires no proof of its genuineness, (1 Greenleaf Ev., Sec. 475,) and the certificate of' the Secretary of State that a certain paper is a record in his office, when attested' by the seal, must be accepted as at least prima facie true, because such a public officer is presumed to act in accordance with law in assuming the custody of records. The law of disputable presumptions rests upon the experience of a connection between the existence' of certain facts and the accepted opinion that in a vast majority of instances the existence of one such fact may be reasonably inferred from proof of the other. 1 Green-leaf, supra, Sec. 33. It appearing by a genuine certificate that the paper was placed in his custody as an official record, the presumption arises that he, as a public officer,, has, in assuming control of such record, done what the law required ; (Lawson on Ev., p. 63, Rule 14,) and that he is. therefore the proper and legal custodian of it. It was not necessary under the circumstances to offer in evidence either a certified copy, or copy purporting to have been printed by authority of the state, of the statute constituting him custodian, when that fact must be assumed from what was already proved. While such printed copies are made competent by statute in most of the states, and while, according to what is probably the more correct view of the law, they are admissible even under the common-law principles of evidence, (Watkins v. Holdman, 16 Peters, *732 '25,) it does not follow that no conceivable combination of facts will raise a presumption of the existence of a statute legalizing the act of a public officer and dispensing with the necessity for the production of a copy with evidence ■of its genuineness. The certificate is sufficient of itself to •shift the burden of proof as to the custody of the record, and, conceding that it is shown to be a record, the certificate of the Attorney General constitutes a part of it and •shows that he examined the certificate of organization of the corporation, and decided that it was in all respects in ■conformity with law. .It is familiar learning, for which it is needless to cite authority, that the certificate of the Sec-Tetary of State of North Carolina, attached to a grant of land' and attested by the Great Seal of the State, is suffi-cient evidence of its official character to warrant its registration without further proof. Code, Sections 2779 and .2781. The testimony of Cooper and the England deed tended to show a collusive combination to avoid the performance •of the contract by forestalling the defendant in buying up ■a title, and preventing him from perfecting his own, as he had a right to do. Westall v. Austin, 5 Ired. Eq., 1. Plaintiff could ask nothing more than the expense incurred, •and this she has not done. Kindly v. Gray, 6 Ired. Eq., 445. The “ broadside ” exceptions to the judgment and to the instruction are not sufficiently specific and will not be considered. ¥e have carefully considered such assignments of error as have any merit, and conclude that the judgment must be affirmed. Affirmed.