{ "id": 8653879, "name": "FRANCES BARCELLO v. L. S. HAPGOOD", "name_abbreviation": "Barcello v. Hapgood", "decision_date": "1896-02", "docket_number": "", "first_page": "712", "last_page": "732", "citations": [ { "type": "official", "cite": "118 N.C. 712" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "6 Ired. Eq., 445", "category": "reporters:state", "reporter": "Ired. Eq.", "case_ids": [ 2102580 ], "opinion_index": 0, "case_paths": [ "/nc/41/0445-01" ] }, { "cite": "5 Ired. Eq., 1", "category": "reporters:state", "reporter": "Ired. Eq.", "case_ids": [ 2101521 ], "opinion_index": 0, "case_paths": [ "/nc/40/0001-01" ] }, { "cite": "12 La. Ann., 388", "category": "reporters:state", "reporter": "La. Ann.", "case_ids": [ 573231 ], "opinion_index": 0, "case_paths": [ "/la-ann/12/0388-01" ] }, { "cite": "105 N. C., 187", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "18 Am. St. Rep., 889", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "116 N. C., 940", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655881 ], "opinion_index": 0, "case_paths": [ "/nc/116/0940-01" ] }, { "cite": "20 Minn., 531", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 8877005 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/minn/20/0531-01" ] }, { "cite": "90 N. C., 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8696230 ], "opinion_index": 0, "case_paths": [ "/nc/90/0417-01" ] }, { "cite": "111 N. C., 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651582 ], "opinion_index": 0, "case_paths": [ "/nc/111/0439-01" ] }, { "cite": "91 N. C., 41", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "48 Ill., 172", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5228121 ], "opinion_index": 0, "case_paths": [ "/ill/48/0172-01" ] }, { "cite": "10 Mo., 559", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 323881 ], "opinion_index": 0, "case_paths": [ "/mo/10/0559-01" ] }, { "cite": "47 Am. Dec., 129", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "129 Pa. St., 463", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 568068 ], "opinion_index": 0, "case_paths": [ "/pa/129/0463-01" ] }, { "cite": "15 Am. St. Rep., 724", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "140 N. Y., 576", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2256657 ], "opinion_index": 0, "case_paths": [ "/ny/140/0576-01" ] }, { "cite": "23 Ill., 579", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5802043 ], "opinion_index": 0, "case_paths": [ "/ill/23/0579-01" ] }, { "cite": "51 Mich., 145", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 8718302 ], "opinion_index": 0, "case_paths": [ "/mich/51/0145-01" ] }, { "cite": "102 N. C., 240", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "116 N. C., 22", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654157 ], "opinion_index": 0, "case_paths": [ "/nc/116/0022-01" ] }, { "cite": "101 N. C., 255", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650316 ], "opinion_index": 0, "case_paths": [ "/nc/101/0255-01" ] }, { "cite": "99 N. C., 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649757 ], "opinion_index": 0, "case_paths": [ "/nc/99/0173-01" ] }, { "cite": "90 N. C., 197", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8689852 ], "opinion_index": 0, "case_paths": [ "/nc/90/0197-01" ] }, { "cite": "86 N. C., 203", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "5 Ired. Eq., 136", "category": "reporters:state", "reporter": "Ired. Eq.", "case_ids": [ 2101484 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/40/0136-01" ] }, { "cite": "112 N. C., 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650343 ], "opinion_index": 0, "case_paths": [ "/nc/112/0034-01" ] }, { "cite": "107 N.C., 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274661 ], "opinion_index": 0, "case_paths": [ "/nc/107/0695-01" ] }, { "cite": "63 N. C., 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276998 ], "opinion_index": 0, "case_paths": [ "/nc/63/0251-01" ] }, { "cite": "73 N. C., 504", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8695596 ], "opinion_index": 0, "case_paths": [ "/nc/73/0504-01" ] } ], "analysis": { "cardinality": 1320, "char_count": 36044, "ocr_confidence": 0.459, "pagerank": { "raw": 4.4205572802550733e-07, "percentile": 0.9204924688659455 }, "sha256": "c49996c3d743df1b7f79455154a9500d2304701b7f6f88217e788e956d15b648", "simhash": "1:8b20ec597728e048", "word_count": 6184 }, "last_updated": "2023-07-14T17:26:06.557243+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FRANCES BARCELLO v. L. S. HAPGOOD." ], "opinions": [ { "text": "Avery, J.:\nThe 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 \u201c Hancock Gold Mine,\u201d on account of defect of defendant\u2019s title, and for the recovery of two thousand dollars, purchase-money, already paid \u25a0by 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 \u2022out 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.\nThe title deeds, which gave rise to the exceptions as to \u25a0form of probate and power of agents to execute, were those \u2022offered by the defendant Hapgood to show that he was able to specifically perform his contract. \u201c It is usual,\u201d 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 \u2022circumstances, not only has power but should, in the exer- \u25a0 cise of its discretion, authorize and confirm what is called a private sale ; that is, a sale without advertisement and public outcry.\u201d It is settled by a number of adjudications \u201c that The Code has not taken away from the supe' 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.\nIn 1880, when Rachel Peatson, as guardian of her infant children, filed the petition before the cleric of the superior court, he was\u2019 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-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.\nThe 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 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 \u201c foregoing instrument was his free act and deed \u201d was sufficient in law. The certificate of Hallybur-ton, clerk, that B. S. Gaither, the subscribing witness, appeared before him, \u201c and the due execution of the annexed deed was duly proven \u201d by him, was also sufficient to authorize the order of registration and the recording of the deed.\nWhile 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 \u2014140 N. Y., 576; Com. v. Railroad, 15 Am. St. Rep., 724, and note \u2014129 Pa. St., 463; Blair v. Ins. Co., 47 Am. Dec., 129, and note\u201410 Mo., 559; Ducat v. Chicago, &c., 95 Am. Dec., and note\u2014 48 Ill., 172; 6 Morawitz Pr. Corp., Secs. 960 to 965. The corporation was created for the purpose of \u201c mining and milling of gold and other minerals, especially in Silver Creek township, Burke Go., N. 0.,\u201d 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 \u2022expressly 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 t\u00f3 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 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.\nA conveyance of the property of a corporation, like that of an individual, may be executed \u201c through any agent having authority to represent the company for that purpose.\u201d 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\u2019 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.\u201d 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 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, 18 Am. St. Rep., 889, and note \u2014 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, '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 \u25a0of its genuineness. The certificate is sufficient of itself to \u2022shift 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 \u2022shows that he examined the certificate of organization of the corporation, and decided that it was in all respects in \u25a0conformity 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.\nThe testimony of Cooper and the England deed tended to show a collusive combination to avoid the performance \u2022of the contract by forestalling the defendant in buying up \u25a0a 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, \u2022and this she has not done. Kindly v. Gray, 6 Ired. Eq., 445. The \u201c broadside \u201d exceptions to the judgment and to the instruction are not sufficiently specific and will not be considered. \u00a5e have carefully considered such assignments of error as have any merit, and conclude that the judgment must be affirmed.\nAffirmed.", "type": "majority", "author": "Avery, J.:" } ], "attorneys": [ "Messrs. Cilley & Hufham,, for plaintiff (appellant).", "Messrs. P. J. Sinclair and Isaac Avery, for defendant." ], "corrections": "", "head_matter": "FRANCES BARCELLO v. L. S. HAPGOOD.\nThe Code, Sections 632, 640, 685,1590, 1602, 2779, 2781\u2014 Judicial Sales of Infants\u2019 lands \u2014 Private Sales by Order of' Court \u2014 Jurisdiction in Equity \u2014 Purchasers at Judicial Sales Protected \u2014 Foreign Corporation\u2019s Bights to Beal Estate \u2014 Deeds of Corporations \u2014 Proof of Charter of Foreign Corporation \u2014 Official Acts Presumed Valid \u2014 Probate of Deeds of Non-Residents and Corporations \u2014 Implied Powers of Corqoorations\u2014 Forestalling \u2014 \u201c Broadside \u201d Exceptions \u2014 Great Seal of a State.\n1. It is not irregular or erroneous to order the sale of an infants\u2019 land to be made privately by the guardian.\n2. The Code does not take away from the superior courts the jurisdiction heretofore exercised by courts of equity.\n3. By Section 1602, The Code, the clerk and court in term have concurrent jurisdiction in the matter of ordering a sale of infants\u2019 lands upon petition of their guardians.\n4. A stranger, who purchases lands in good faith at a sale made under the judgment of a court having general jurisdiction over the person and subj ect matter, acquires a good title. He is not required to look behind the judgments of the higher courts and pass upon their regularity.\n5. A guardian petitioned for a sale of land, owned by herself and her wards, under Section 1602, The Code. The clerk, as probate judge, ordered a reference to ascertain the truth of the petition and advisability of. a sale. The referee reported favorably and his report was confirmed by the clerk. Then the judge of the superior court rendered judgment authorizing a sale of the land by the guardian at private sale; Held, that the purchaser at such sale acquired a good title.\n6. The Code, Section 1590, requiring sales by guardians to be publicly made, does not apply to sales made under directions of the superior court in exercise of its general jurisdiction in equity.\n7. The Code, Section 640, confers full authority upon clerks of courts of record in other states to probate deeds ; and the courts of this State will take judicial cognizance of the official seals of such officers attached to certificates of probate.\n8. Commissioners of affidavit are empowered by The Code, Section 632, to take acknowledgments of deeds in other states by residents of this State and of the state for which such commissioners are appointed ; and by Section 640 equal authority is vested in clerks of courts of record in other states.\n9. Foreign corporations, having a right under their charters to acquire and sell land, can exercise such rights in this State to the same extent that corporations of this State can do so.\n10. A strictly private corporation can lawfully sell any of its property, real or personal, just as an individual can ; but such is not the ease with corporations which are quasi public, and have duties to perform in which the public are interested.\n11. A corporation chartered for the purpose of mining and milling ores has the right, by implication of law, to buy and sell real estate essential to the successful prosecution of its business.\n12. When it is doubtful whether the right to hold land comes within the purview of a corporation\u2019s powers, that question can be raised as against any corporation exhibiting title to realty only by a ioroceeding authorized by the State.\n13. Corporations possess by legal implication such powers as are essential to the exercise of the powers expressly conferred and necessary to attain the main objects for which they were formed:\n14. The Code, Section 685, directing the method by which corporations may execute deeds, is not exclusive. The common law methods of executing such deeds are still valid.\n15. A corporation\u2019s deed for realty may be executed by any agent having authority from the com pany to represent it for that purpose.\n16. Acts of corporate or state officials purporting to be done by virtue of their offices are taken to be correct and are prima facie valid and true.\n17. The great seal of this or one of the other states of the Union requires no proof.\n18. The charter of a foreign corporation may be proven in this State by exhibiting a copy duly certified by the Secretary of State of the state in which the corporation was created.\n19. Where a vendor in a contract to convey land has only a defective title, and his vendee buys up the outstanding claims for the purpose of forestalling such vendor and preventing his complying with his contract, such vendee can only recover what he actually paid for the outstanding claims.\n20. \u201cBroadside\u201d exceptions to the judge\u2019s charge and the judgment as rendered will not be considered.\n21. A State grant should be recorded without farther proof than the Great Seal of the State being affixed to it.\nCivil. ACTION, tried before Timberlake, J., at Spring-Term, 1985, EmtKE Superior Court.\nThe action was brought to rescind a contract to purchase land, because of alleged defects in the title of the vendor, and recover the portion of the purchase-money already paid. i\nThe tracts of land covered by the contract to convey consist of one three-hundred-acre tract, one twenty-two- and-one-half-acre tract, one one-hundred-acre tract, one seventy-eight-and-one-tliird-aere tract, and one eight-acre tract. There was no dispute as .to the seventy-eight-and-one-third-acre tract, or the twenty-two-and-one-half-acre tract; the controversy was solely as to title to the three hundred acres, the one hundred acres, and the eight acres.\nIn order to show lie- was able to comply with his contract to convey to the three tracts in dispute, the defend ant introduced a grant from the State to one KcKLlesky,. dated March 15th, 1780.\nThis grant was objected to on the ground that it was registered without being proven before the clerk, or by him ordered to be registered. Objection overruled. Exception.\nThis grant proposes to convey three hundred acres of' land in Burke county, on the waters of Silver Creek.\nThe defendant next offered a deed from O. L. S. Corpen-ing, late Clerk and Master in Equity for McDowell county,., to Christiana J. and Huldah E. Pearson, dated April 19, 1871.\nThe defendant next offered a deed from Christiana J. and Huldah E. Pearson, by their guardian, Rachel W. Pearson, and by Rachel W. Pearson in her own right. [Objected to, for want of power in Rachel W. Pearson tO' convey as guardian, and for want of proper probate and registration. Overruled. Exceptions by plaintiff.]\nThe certificate of probate and registration is as follows :\n\u201c NoBTH CAROLINA-BuJBKK C0UNTY.\n\u201c I, J. H. Hallyburton, Clerk of the Superior Court, do-hereby certify that B. S. Gaither, the subscribing witness,, appeared before me this day, and the due execution of the annexed deed was duly proven by him. Let the same, with this certificate, be registered.\n\u201c Witness my hand and seal, this 29th day of May, 1880.\n\u201c J. H. Hallybubton, Clerk.\u201d\n(Seal of Court.)\n\u201c 4. The defendant next introduced deed from L. S. Hap-good to Hancock Gold Mining Company, dated July 3, 1880. [Objected to on the ground that no power in the Hancock Gold Mining Company to hold lands had been shown, or that there was any Hancock Gold Mining Company. Objection overruled. Exception.]\n\u201c 5. The defendant next introduced power of attorney by Hancock Gold Mining Company to L. S. Hapgood, its \u25a0treasurer, to convey their lands, dated July 11, 1883.\n\u201c 6. Next introduced deed from Hancock Gold Mining 'Company to 0. 0. Barton, executed by said company through its agent, L. S. Hapgood, dated June 15, 1888. .\u2018[Objected to for the same reason as Number 4. Ovei1-\u25a0ruled. Exception by plaintiff.]\u201d\nThis deed purports to be executed by the Hancock Gold Mining Company, under its seal, by L. S. Hapgood, Treasurer. The certificate of probate is as follows:\n\u201c COMMONWEALTH OF MASSACHUSETTS,\n\u201c Suffolk, s. s., July 6, 1888.\n\u201c Then personally appeared the above-named, L. S. Hap-\u25a0good, Treasurer, and acknowledged the foregoing instrument to be the free act and deed of the Hancock Gold Mining Company before me.\n(Seal) Joseph A. Willard,\n\u201c Clerk of the Superior Court.\u2019\u2019\u2019\u2019\nOn the left of the signature is the seal of superior court \u25a0affixed.\nThe following is the certificate of the superior court of .Burke county:\n\u201c North CaroliNa \u2014 Burhe County.\n\u201cThe foregoing certificate of Jos. A. Willard, clerk superior court of Suffolk county, Mass., is adjudged to be \u25a0correct. Let the deed and this certificate be registered.\n\u201cJuly 17th, 1888.\n\u201c S. E. Pearson,\n\u201c Clerk Superior Court.\u201d\n\u201cBuree County.\n\u201cFiled for registration on the 17th day of -July, 1888,. and registered in the office of the register of deeds for Burke county, N. C., on the 17th day of July, 1888.\n\u201c J. L. J. Estes,\n\u201c Register of Deeds for Burlce County.\u201d'\n[Clerk will copy power of attorney to L. S'. Hapgood! above and mark \u201cExhibit F.\u201d]\nNext introduced deed Hancock Gold Mining Company to 0. C. Barton, September 1, 1893. Objected to for the reason that the Hancock Gold Mining Company had no-right to convey land. Overruled and exception.\n\u201c8. Next introduced-deed from C. C. Barton to L. S. Hapgood, June 15, 1888.\u201d [Objected to for want proper registration and probate. Overruled and exception.]1\nThe certificate of probate is in the following words and figures:\n\u201c COMMONWEALTH 0E MASSAOHUSETTS,\n\u201c Suffolk County, s. s., July 6, 1888.\n\u201c Then and there personally appeared the above-named Charles C. Barton, and acknowledged the foregoing instrument to be his free act and deed before me.\n\u201c Joseph A. Willard,\n(Seal) \u201c Cleric Superior Court.\u201d\nOn the left side of the signature is the seal of the superior court affixed.\nThe following is the certificate of the clerk of the superior court of Burke coiinty :\n\u201cNorth CaroliNA \u2014 Burke County.\n\u201c The foregoing certificate of Jos. A. Willard, Clerk of the Superior Court of Suffolk county, Mass., is adjudged to be correct. Let the deed and certificate be registered.\n\u201c S. T. Pearson,\n\u201c Cleric Superior Court of Burhe County.\u201d\nThe certificate of registration is as follows;\n\u201c Filed for registration on the 17th day of July, 1888, \u25a0\u00a1and registered in the office of the register of deeds for JBurfee county, North Carolina, on the 17th day of July 1888, in book \u2018 P,\u2019 page 56, 57.\n\u201c J. L. J. Estes,\n\u201c Register of Deeds for Burlce County, N. C.\u201d\nNext introduced record of special proceedings in the case of Christiana J. and Huida. E. Pearson by their guardian Rachel Pearson (ex joarte) in which the petition \u2022 set forth that the petitioner Rachel, as widow and the infant petitioners, Christiana and Huida, as the only heirs-at-law of Patton Pearson were the owners of certain lands (described) and that they had been offered $1,400 in cash for the land by L. S. Hapgood of Boston ; that it was to the interest of all parties to sell, &c., and praying the court to order a sale of the lands by a commissioner after enquiry and report as to the value of the lands, &c. The record also showed a report by a commissioner as to the value of the lands and a recommendation that a sale \u25a0should be made, the facts contained in the report being set out in the decree. The report was filed May 19, 1880, and confirmed on same day by the clerk. The record of said special proceedings also contained the following decree signed by Judge Gilmer:\nDECREE.\nThis case coming on to be heard before John A. Gilmer, one of the judges of the superior courts of the State, now holding the several courts of the Eighth Judicial District, at Chambers, and being heard upon the petition and exhibits, the former order of the court, the report of the commissioner, G. P. Erwin, and the [report] on file. The \u25a0court doth find and declare the facts to be:\n\u201c 1. That the petitioners are tenants in common of the land described in the petition; that the petitioner, Rachel W. Pearson, is entitled to dower in the said lands, and has title to two-thirds of the mineral interest therein in fee-simple ; that the petitioners, Christiana J. Pearson and Halda E. Pearson, are entitled to all the land and one-third the mineral interest in fee-simple, subject to the dower of the said Rachel W. Pearson, daring her life; that the value of interest of Rachel W. Pearson is -equal to the one-half of the present value of the land and all the minerals therein ; and that the value of the present interest of the said Christiana J. and Huida E. Pearson, jointly, is the one-half of the value of the land and all the minerals therein ; and that the value of the lands is eight hundred dollars; that the said Christiana J. is nineteen and the said Huida E. Pearson is seventeen years of age, and are infants; that the petitioner, Rachel W. Pearson, their mother, has been duly appointed their guardian. That the said Rachel W. Pearson, for herself and in behalf of her said wards, has made a contract to sell all the said land at the price of fourteen hundred dollars in money in hand paid, has entered into a written contract with Lyman S. Hapgood, of Boston, in the state of Massachusetts, to that effect, and the court finds the fact to be, and so declares, that the interests of the two minor petitioners, C. J. and Huida E. Pearson, (as well as that of the petitioner, Rachel W. Pearson,) would be materially promoted by a sale of said land at the price of fourteen hundred dollars, and the proceeds of the sale partitioned among the petitioners, according to their respective interests, and that part belonging to the said minors.paid into this court, and placed under control of the court, to be invested or loaned as the court may direct.\n\u201c It is therefore ordered, adjudged and decreed, that the said Rachel W. Pearson, guardian Of the said Christiana J. and Huida E. Pearson, is authorized and empowered by this court to specifically perform said written contract with said Lyman S. Hapgood upon his paying for said land the sum of fourteen hundred dollars, money in hand; and that she be authorized and empowered to convey all the interest, right, title and claims of her said wards in the said lands in fee-simple, with the usual covenants of warranty ; and that said conveyance, made in pursuance of this decree, shall pass the title of the said wards in the same manner, and to the extent as if made by the said Christiana J. and Huida E. Pearson, in proper person of full age.\n\u201c The court doth adjudge that the said purchase-money shall be divided into two equal parts; one part thereof shall be the share of Christiana J. and Huida E. Pearson jointly, and be paid into this court immediately after the sale of the land ; that the same be re-invested, or loaned, to the use and benefit of the said minors as the judge of this court may specify and order; and it is further ordered that this case be retained for further orders. It is adjudged that the petitioner, Rachel W. Pearson, pay the cost of this proceeding out of her part of the proceeds of such sale, and that Geo. P. Erwin, the commissioner, be allowed $5 for taking the testimony, and making his report 24th May, 1880.\n\u201cJOHN A. GILMER,\n\u201c Judge Fifth, District, Presiding in\n\u201c Eighth Judicial District J\nREPORT OF RACHEL PEARSON.\nRachel Pearson, guardian of her two daughters, C. J. and Huida E. Pearson, has the honor to report to this court, that she, as guardian of her said wards, and in her own behalf, has specifically performed the written contract entered into with Lyman S. Hapgood, on the 29th day of April, 1880, in behalf of herself and in behalf of her said wards by selling and conveying to the said Lyman S. Hapgood the lands described in the proceedings in this case under and in pursuance of the former order of this court, having received in payment for said land the sum of fourteen hundred, dollars of money in hand paid, one-half of which is the money due my wards for their interest in said lands ; and I do now return and pay into this court, for the use and benefit of my said wards, the sum of seven hundred dollars ($700), agreeable to the order of this court, made in this case, this 29th May, 1880. (Signed by Rachel W. Pearson.)\nRECEIPT OE CREEK.\nil The within report on this 31st day May, 1880, was returned into court, and the sum of $700 paid into court by Eachel W. Pearson, guardian of her wards, C. J. and Huida E. Pearson, for their use and benefit, to be invested by the order of this court for them, agreeable to the former order made by the judge of this court, and the clerk of this court has given his receipt for the same, this 31st May, 1880.\n\u201c J. H. HallyburtoN,\n\u201c Clerh Burlce Superior Court.\u201d\nNext introduced grant from the State to James Green-lee, James and \"William Erwin, dated December 7,f\u20181795.\nNext introduced deed from George P. Erwin, trustee, to Hancock Gold Mining Company, covering the eight-acre traet, and it was admitted th.at G. P. Erwin, as such trustee, had power to convey the title to lands belonging to the heirs of the said Greenlee and the said Erwin within boundary of this grant. There was evidence that the eight-acre tract was within the boundaries of this grant.\nNext introduced grant from the State to J. PI. Hall, dated November 25, 1853, covering one hundred acres.\nNext introduced deed from James Terry and wife to L. S. Hapgood, dated July 23, 1880.\nNext introduced letters of incorporation of the Hancock Gold Mining Company, with certificate by the Secretary of State for Maine, as follows :\n\u201c CERTIFICATE OF ORGANIZATION OF A CORPORATION UNDER THE GENERAL LAW.\n\u201c The undersigned, officers of a corporation organized at Portland,in the county of Cumberland and state of Maine, at a meeting of the signers of the articles of agreement therefor, duly called and held at No. 93 Exchange, in said Portland, on Saturday, the 19th day of June, A. D. 1880, hereby certify as follows :\n\u201cThe name of said corporation is the Hancock Gold Mining Company. The purposes of said corporation are the mining and milling of gold and other minerals, and especially the mining and milling of gold and other minerals in Silver Creek township, Purke county, and State of \u25a0 North Carolina. '\n\u201c The amount of capital stock is three hundred thousand dollars, and is paid in full, and the shares thereof are to be forever non-assessable. The par value of a share is ten dollars.\n\u201c The names and residences of the owners of said shares are as follows :\n\u201cLyman S. Hapgood, Boston, Mass., ten thousand.\n\u201c John E. Eldridge, Boston, Mass., ten thousand.\n\u201c Alpheus P. Blake, Boston, Mass., ten thousand.\n\u201c Said corporation is located'at Portland. The number of directors is three, and their names are Lyman S. Hap-good, John E. Eldridge and Alpheus P. Blake. The undersigned, John F. Eldridge, is President; the undersigned, Lyman S. Hapgood, is Treasurer, and the undersigned, John F. Eldridge, Lyman S. Hapgood and Alpheus P. Blake, are a majority of the directors.\n\u201cWitness our hands, this 19th day of June, A. H., 1880.\nJOHN F. ELDRIDGE,\nPresident and Pireetor.\nLyMAN S. Hapgood,\nTreasurer and Director.\nAlpheus P. Blaee,\nDirector.\n\u201cCUMBERLAND \u2014 ss June 19, A. D. 1880.\n\u201cThen personally appeared John F. Eldridge, LymanS. Hapgood and Alpheus P. Blake, and made oath that the foregoing statement, by them subscribed, is true.\nBefore me : A. J. Bradstreet,\nJustice of the Peace.\u201d\nState op Maine,\nAttorney GeneraVs Office,\n. June, A. D. 1880.\n\u201cI hereby certify that I have examined the foregoing certificate, and the same is properly drawn and signed, and is conformable to the Constitution and laws of the State.\nHenry B. Cleaves,\nAttorney. General.\u201d\n\u201c State oe Maine,\nOffice of Secretary of State.\n\u201cI hereby certify7 that the foregoing is a true copy from the records of this office. In testimony whereof I have caused the seal of the State to be hereunto affixed.\n\u201cGiven under my hand at Augusta,this sixth day of February, in the year of our Lord one thousand eight hundred and ninety-four, and in the one hundred and eighteenth year of the Independence ofthe United States of America.\nJ. J. OHADBO\u00dcRNE,\n(Official Seal) ' Secretary of State.\u201d\n[Objected to by the plaintiff for defective certificate, and there was no power conferred in the certificate upon the alleged corporation to hold and convey land described in the deeds to and from it. Objection overruled and exception by the plaintiff.]\nFor the purpose of showing the unequitable conduct of the plaintiff towards her bargainor, the defendant, by her agent, copartner and co-plaintiff, the defendant introduced a tripartite contract between the plaintiff, J.. 0. Land-reau, Rev. Father Crowly and Mrs. Ilarcello. (See Exhibit B.) Also affidavit of Landreau, showing that he was a party in interest. (Exhibit 0.)\n[Plaintiff objects ; overruled-; exception.]\nThese exhibits are omitted here because the purport of this evidence is sufficiently stated in the opinion.\nPlaintiff introduced no evidence. There was a verdict and judgment for defendant, and plaintiff appealed and assigned as errors as follows :\n\u201c 1st. Admission of improper testimony.\n\u201c 2d. Refusal to give instructions asked for by plaintiff.\n\u201c 3d. For error in instructions given.\n\u201c4th. To the judgment.\u201d\nAs these assignments of error are held 'to be too vague and indefinite, as far as the judgment and instructions arc \u25a0concerned, and the judge\u2019s charge and prayers for special instructions are not passed upon by the court, they are omitted.\nMessrs. Cilley & Hufham,, for plaintiff (appellant).\nMessrs. P. J. Sinclair and Isaac Avery, for defendant." }, "file_name": "0712-01", "first_page_order": 748, "last_page_order": 768 }