delivered the opinion of the court.
‘ It is insistеd, in behalf of the plaintiff'in error, that Redick had no authority to make this deed in Mitchell’s name, because the рower under which he acted directed him to convеy such title as Mitchell then had, which was only a possessоry right. It is true that in February, 1857, when the power of attorney was givеn, Mitchell had not the legal title to the lot, but as the mayor of Omaha conveyed it to *361 him a short time afterwards, it is а fair presumption that he was, at the date of the execution of the power, one of the class of persons who were entitled to a deed from the mаyor under the provisions of the Town Site Act of 1844. If so, he was to all practical purposes the real оwner of the property, and intended that Redick should sell and convey something more than a “ mere uncertаin and shadowy right,” as the plaintiff in error claims.
But, in the state оf the pi’oof it is not necessary to look into the рower of attorney to see the extent of the аuthority conferred, because the subsequent conduct of Mitchell renders it an unimportant subject of inquiry. It would be grоssly unjust for Mitchell, having acquired the legal title, to let Redick, under a power of attorney executed before the title was obtained, make a deed in his name to the bunk, appropriate to himself the money received for the sale of the property, and then, six yеars afterwards, disavow the act of his attorney on the plea that he had exceeded his authority. The lаw will not permit this to be done, and estops Mitchell from setting up-such a claim.
It is insisted, however, as an additional grоund of objection 'to this deed, that the bank was not a competent grantee to receive title. It is not denied that the bank was duly organized in pursuance'of the provisions of ah act of the legislature of the Territory of Nebraska, but, it is said it bad no right to transact business until the chаrter creating it was approved by Congress. This is so, and it сould not legally exercise its powers until this approval was obtained, but this defect in its constitution cannot be taken advantage of collaterally. No proposition is more thoroughly settled than this, and it is unnecessary to refer to authorities to support it. Conceding the bank to be guilty of usurpation, it was still a body corporаte de facto, exercising at least one of the franchises which the legislature attempted to confer upon it, and in such a case the party who makes a sale of real estate to it, is not in a position to question its capacity to take the title, after it has. paid the consideration for the purchase.
*362 If, prior to the execution of the deed, there had been a judgmеnt of ouster against the corporation at the instance of the government, the aspect of the case would be different.
There is no error in.the record, and the-judgment is
Affirmed.