Opinion
Department 1. Appeal from superior court, San Benito county; JAMES F. BREEN, Judge. Affirmed.
Action on a promissory note by one McCroskey against one Ladd and another. Judgment for defendants. Plaintiff appeals. COUNSEL
[3 Cal.Unrep. 434] John L. Hudner and M. T. Dooling, for appellant.
N. C. Briggs, for respondents.
OPINION
PATERSON, J.
On August 25, 1887, the plaintiff agreed in writing to sell and convey certain lots to the defendants on the following terms: ‘$650 at this date, and the balance [3 Cal.Unrep. 435] ($5,850) within sixty days from this date. And said McCroskey, upon receiving said payments, agrees to make a deed of said property to said persons, and convey title to said premises to them; and, if said persons fail to make said payments as herein named, they shall forfeit all right to said property, and all right to all payments made herein. If said title is not sufficient and good, then said moneys shall be refunded.’ Thereupon the defendants executed and delivered to the plaintiff a promissory note for $650. Although not required to do so by the terms of the contract, the plaintiff furnished to the defendants an abstract of his title, which the latter submitted to their attorney, who, after examination, reported that it did not show title in the plaintiff. Defendants notified plaintiff of the fact, whereupon the latter furnished another abstract, which was submitted by consent to another attorney, agreed upon by the parties, for his opinion, but the plaintiff did not agree to be bound thereby. After examining the abstract, said attorney, Archer, gave an opinion in writing that the title was not good. This opinion was handed to the plaintiff, but it did not point out, nor did the defendants ever state to the plaintiff, wherein the title was defective. The second abstract referred to was furnished after the expiration of the 60 days named in the contract. Soon after the opinion of Archer was given to the plaintiff, the defendants demanded of the latter the possession of the note referred to. After said demand plaintiff tendered to McClay, one of the defendants herein, a deed of grant, bargain, and sale, in the usual form, describing the property, and demanded payment of the sum of $6,500. The demand was refused, whereupon this action was commenced to recover the amount named in the note.
One of the deeds in the chain of title upon which the plaintiff relies was a deed from the San Justo Homestead Association, a corporation created under the laws of this state, to one Sowle. This deed was executed by the president and secretary of said association, and attested by their individual seals. No corporate seal was attached thereto. The deed recites that to facilitate the sale of certain lots ‘said association did, at their annual meeting held at Gilroy, California, on the 20th day of January, 1869, pass the following, to-wit: ‘Resolved, that the president and secretary of the San Justo Homestead [3 Cal.Unrep. 436] Association, at the time of any sale of said lots, be, and are hereby, authorized and empowered in the name and on behalf of said association to make, execute, and acknowledge a good and sufficient deed of conveyance of grant, bargain, and sale to the purchaser or purchasers of any lots sold, on receipt of the purchase price thereof.’’ It is not essential to the validity of a deed executed by a corporation that it should contain a recital of the authority under which it is made, unless such recital is made necessary by statute. 1 Devl. Deeds, § 343. But, where such authority is recited, it will be deemed to be the only authority upon which the officers executing the deed acted. The corporate seal is prima facie evidence that the officers executing the deed had been authorized by the board of directors to act. ‘It is settied law in this state that a corporation can only act, can only speak, through the medium prescribed by law, and that is its board of trustees.’ In re La Solicarite Mut. Ben. Ass’n, 68 Cal. 394, 9 P. 453. The recital in the deed to Sowle indicates that the authorization of the president and secretary came from the stockholders at an annual meeting of the association. At least it does not show that the authority came from the board of directors, and the absence of the corporate seal indicates that the board never acted upon the matter. The authority of the officers to execute the deed must affirmatively appear. Kahn v. Supervisors, 79 Cal. 399, 21 P. 849; Koehler v. Iron Co., 2 Black, 715. In cases of this kind, a title, to be good, must be one which is ‘free from litigation, palpable defects, and grave doubts; should consist of both legal and equitable titles; and should be fairly deducible of record.’ Turner v. McDonald, 76 Cal. 180, 18 P. 262. The question as to whether or not the vendor has acquired a perfect title by adverse possession is not to be considered. The purchaser is entitled to a good paper title, sufficient in law, ‘and was not bound to accept title resting upon the statute of limitations, or take the risk of determining from facts which he might learn dehors the record whether or not the statute of limitations could be successfully pleaded against the adverse claim.’ Benson v. Shotwell, 87 Cal. 56, 25 P. 249.
It is claimed by appellant that the respondents were estopped from claiming any advantage by reason of these defects, because they were not pointed out at the time the [3 Cal.Unrep. 437] objection was made to the title; that, if they had been, the defects might have been cured. The contract does not fix any time or place any duty upon the respondents with regard to an examination into the title or notice to the appellant of any defects which might be discovered therein. The respondents were entitled to rely on the record as they found it. Assuming, however, that it was the duty of the respondents under this contract to point out any imperfections in the title discovered by them, the record shows that the plaintiff was not injured by their failure to give him notice of the defect referred to. The only object in requiring such notice in any case is to give the vendor an opportunity to correct the defect. The court found that the San Justo Homestead Association was dissolved by a decree of the county court in 1877. It would have been impossible, therefore, for the plaintiff to have removed the imperfection in his title before the time named for the completion of the purchase. Conceding, furthermore, that the only question is whether the plaintiff’s title was in fact good, and that the authority of the officers of the corporation to execute the deed might have been shown by the minutes of the board of directors, it is sufficient to say that no such showing was made. Proof of the absence of the corporate seal cast upon the plaintiff the burden of showing that the president and secretary were authorized by the board of directors to execute and deliver the deed. Koehler v. Iron Co., supra.
It is claimed by appellant that the irregularity in the execution and acknowledgment of the deed was cured by the provisions of section 1207 of the Civil Code. That section provides that any instrument affecting real property, recorded in the office of the county recorder prior to January 30, 1873, shall be deemed to impart ‘notice of its contents to subsequent purchasers and incumbrancers, notwithstanding any defect, omission, or informality in the execution of the instrument, or in the certificate of acknowledgment thereof, or in the absence of any such certificate.’ But the imperfection we have been considering is not a mere defect, omission, or informality in the execution of the instrument, or in the certificate of acknowledgment thereof, but is one which relates directly to the authority of the officers to act.
[3 Cal.Unrep. 438] At the conclusion of their brief, counsel for appellant state that respondents’ objections ‘go to the very foundation of appellant’s title,’ and, if approved by the judgment of this court, will obscure the title to property valued at millions of dollars in and about the town of Hollister. The fear thus expressed, however, is groundless. A vendor may be able through litigation to establish a perfect title, and yet be unable to enforce a contract for the sale of his land. We do not determine in this action whether plaintiff’s title is or is not good in fact. The stipulation in the contract that, ‘if said title is not sufficient and good, then said money paid shall be refunded,’ must be held to mean that, if there should appear to be such uncertainty about the title arising from the record as to affect its marketable value, the plaintiff would return the money or note which he had received from the defendant. The title must be free from ‘litigation, palpable defects, and grave doubts.’ If it is not, ‘a court of equity will not compel its acceptance, and cast upon him the risk of litigation, and the embarrassment of a questionable title.’ Townshend v. Goodfellow, 40 Minn. 319, 41 N.W. 1056. Judgment affirmed.
I concur: GAROUTTE, J.
HARRISON, J.
I concur in the judgment. The plaintiff had the right to bring an action for the specific performance of the contract of sale against the other parties thereto, and in order to maintain such action it would have been necessary for him to show what he had tendered to the defendants a deed of conveyance of the lands described in said contract, and that such conveyance was sufficient to vest in them the title thereto. Instead of commencing such an action, he has brought the present one against two of the parties to that contract for a portion of the purchase price of the land, without having tendered to either of them any conveyance. At the time this action was commenced the plaintiff had the right to recover the whole of the purchase price of the land if he had the right to recover any of it, but he could maintain such an action only after a tender of a conveyance. He could not, however, sever his contract, and recover from two of the purchasers a portion of that purchase price, without thereby waiving his right to the remainder, or without giving to them any consideration therefor. He was not entitled to retain the land and at the same time recover its value from the defendants.