55 Cal. 98 | Cal. | 1880
This is an action of ejectment to recover two town lots in the town of Bakersfield. Judgment was rendered for plaintiff, and defendant appealed.
Plaintiff relies upon parole gift from Thomas Baker, and occupation for more than five years. Defendant relies upon title acquired by a deed from Thomas Baker to Gr. B. Chester, dated October 23rd, 1869, recorded August, 1870, and from Gr. B. Chester to Julius Chester, (defendant) dated January 3d, 1873, recorded January, 1876.
The evidence given by plaintiff tended to prove that in the fall of 1871, several residents of Bakersfield, wishing to erect a hall for public purposes, signed an agreement as follows:
“The undersigned agree to form a joint-stock company to build á public hall, and Odd Fellows’ Lodge, in the town of Bakersfield, and will take the number of shares attached to our names in the capital stock, to consist of 300 shares of $10 each, payable when the entire amount is taken. The company to be formed on the express condition that no assessment shall ever bo made on the shares of stock.”
Among the signers. were Julius Chester 50 shares, Thomas Baker 20 shares, Gr. B. Chester 5 shares, who were also actual
Section 6 of the act concerning corporations (Hitt. Gen. Laws, art. 751) contained the proviso, “ that the question of the due incorporation of any company, claiming in good faith to be a corporation under the laws of this State, and doing business as such corporation, or of its right to exercise corporate powers, shall not be inquired into collaterally in any private suit to which such defacto corporation may be a party.”
This proviso has been referred to in various decisions by this Court, viz.: Rondell v. Fay, 32 Cal. 354; 20 id. 286; O. & V. R. R. Co. v. Plumas Co. 37 id. 354. In the latter case the point was distinctly presented, and Mr. Justice ItnoDBS, delivering the opinion of the Court, uses the following language: “ Many of the acts required to be performed in order to make a complete organization of the corporation may have been irregularly performed, or some of them may have been entirely omitted, and the rule of the statute is, that such irregular or defective performance shall not defeat the incorporation when drawn into question collaterally. The omission of the names and number of the first trustees from the articles of association, the failure to file a duplicate of the articles of association with the Secretary of State, * * insufficient acknowledgment, are irregularities that will not defeat the corporation. A substantial compliance with the requirements of the statute will bo sufficient.” (See, also, S. & L. G. R. Co. v. S. & C. R. R. Co. 45 Cal. 680.) The Court says: “ The plaintiff was a corporation da facto at all events, and, as such, was in the undisputed possession and control of the road. * * In this condition of things, defendant entered upon the road along Weber Avenue, and took it into possession, and now undertakes to defend this action on the ground that the plaintiff was not a corporation de jure. * * We think that, under such circumstances, the title of the plaintiff cannot be inquired into by defendant, who is a mere intruder.” It is sufficient if the company claims in good faith to be a corporation under the laws of this State, and is
The testimony, as above stated, tended to show that defendant and his grantors, even if they had the legal title, were not in possession of the premises at any time from November 9th, 1871, until the latter part of 1877; on the contrary, that in November, 1871, the parties subsequently incorporating took possession of the premises, with the knowledge and consent of Baker, Chester, and Chester, and held the same until May 20th, 1872; and that, from that day, the association exclusively held and possessed the same, claiming to be the owner, with the knowledge and consent of Baker, Chester, and Chester, not as a tenant of them, or either of them; and so held and possessed the same until the entry of defendant in the fall of 1877. The above was specially found by the Court, except that the finding dates the entry of defendant in November, 1876. This gave title to plaintiff, and it was entitled to recover.
Judgment affirmed.
Thoenton, J., and Shaepstein, J., concurred.
By the Cotjet (in bank, on petition for rehearing):
The application that this case be heard in bank is denied. A gift of real estate may be made by parole, if possession is given and taken under such gift, and acts done by the donee to carry