Application of Laurel Hill Cem. Assn.

STURTEYANT, J.

—This is an application for leave to sell real property. The application was made by Laurel Hill Cemetery Association. In the lower court George Clark Sargent and others appeared as contestants. A hearing of the application was had and thereafter the trial court made an order granting the leave. From that order the contestants have appealed, and have brought up the judgment-roll and a bill of exceptions.

In this court the appellants contend that the petitioner has not been given the power and, in view of the contractual rights that have been established, the petitioner may not legally be granted power to sell any of the lands of the corporation. On the other hand, the respondent concedes that lands which have been mapped and platted, or lands in which interments have been made, may not legally be - sold; but, in this behalf, the respondent shows to the court that the lands for which the respondent asks leave to sell are only a portion of the holdings of the respondent and that such lands are not and never have been mapped or platted and that at the present time, by reason of certain ordinances heretofore enacted by the board of supervisors, the lands in question may not hereafter be used for the purpose of therein burying the body of any dead person. As to such lands the respondent contends that under the act approved

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April 18, 1859, page 267 of the Statutes of 1859, the respondent had the right to sell such lands; that when the codes were enacted said statute was codified and the respondent elected in the manner prescribed by law to continue its existence under the codes, and that under the provisions of the codes the respondent’s said right was not curtailed or diminished in any respect. In this contention we think the respondent is correct.

Looking at the statute as a whole, it is perfectly clear that when the respondent corporation organized and thereafter filed and caused to be recorded the certificate mentioned in section 2 and section 3 of the statute, it thereupon became vested with power “To purchase, hold, sell, and convey, such real and personal estate as the purposes of the incorporation shall require.” (Sec. 3, subd. 3.) It also provided that “Any association incorporated under this Act, may take, by purchase or devise, and hold, . . . not exceeding 320 acres of land, to be held and occupied exclusively for a cemetery for the burial of the dead. Such land, or such parts thereof as may from time to time be required for that purpose, shall be surveyed and subdivided into lots or plats of such size as the trustees may direct, with such avenues, paths, alleys, and walks, as the trustees deem proper; and a map or maps of such surveys shall be filed in the office of the County Recorder of the County in which the land shall be situated. And after filing such map, the trustees may sell and convey the lots or plats designated upon such map, upon such terms as shall be agreed upon, and subject to such conditions and restrictions, to be inserted in or annexed to the conveyances, as the trustees shall prescribe. The conveyances to be executed under the common seal of the association and signed by the president or vice president, and the treasurer of the association. Any association incorporated under this Act, may hold personal property to an amount not exceeding $5,000, besides what may arise from the sale of lots or plats.” (Sec. 4.) Except as restricted or limited in the section just quoted, the statute does not contain any expressed restriction or limitaton upon the power of the association to sell its real estate. On the other hand, the provisions quoted from section 3, as well as portions of section 4, clearly vested in the association power to purchase at least 320 acres. When, as here, a corpo