Anglo-Californian Bank, Ltd. v. Field

The facts are stated in the opinion of the court.

J. W. Lilienthal, and Daugh'erty & Lacy, for Anglo-Californian Bank, Limited, Respondent and Appellant, and for Thomas W. Cowan, Appellant and Respondent.

The incorporation of plaintiff was proved by competent evidence under the statute (act of April 18, 1872), and also by the estoppel of the mortgagor; and those claiming under him to deny its corporate existence (Camp v. Land, 122 Cal. 169; Clark v. Baker, 14 Cal. 612;1 Bay City Assn. v. Broad, 136 Cal. 526; Schwallback v. Chicago etc. Ry. Co., 69 Wis. 2922) and by the recital in the subsequent mortgage that it is subject to the prior claim of the plaintiff by its corporate name. (Pratt’s Exr. v. Nixon, 91 Ala. 192; Williams v. Kokomo etc. Assn., 89 Ind. 389; People’s Savings Bank v. Collins, 27 Conn. 142; Hasenritter v. Kirchhoffer, 79 Mo. 239; Morawetz on Private Corporations, sec. 144, note.) The act of 1872 in relation to foreign corporations and the amendatory act of 1899 are constitutional and valid. The titles are sufficient. (Ex parte Liddell, 93 Cal. 636; People v. Superior Court, 100 Cal. 118.) The classification is proper. (San Francisco v. Liverpool etc. Ins. Co., 74 Cal. 114.3) The acts are uniform in their operation (Hellman v. Shoulters, 114 Cal. 136; Wigmore v. Buell, 122 Cal. 144; Vail v. San Diego County, 126 Cal. 35; Murphy v. Pacific Bank, 119 Cal. 334), and grant no special privileges to foreign corporations. Section 299 of the Civil Code is inapplicable to a mortgagor, or to a foreign corporation. (Savings and Loan Soc. v. McKoon, 120 Cal. 179; South Yuba Co. v. Rosa, 80 Cal. 336.) There was no merger of the prior mortgage under the circumstances of the case, showing an intention to keep the mortgage alive, which equity will also presume, there being no evidence of a contrary intention. (Davis v. Randall, 117 Cal. 16-17; Scrivner v. Dietz, 84 Cal. 295; Hines v. Ward. 121 Cal. 115.) There was no issue as to merger, and the finding was outside of the issues and cannot prevail. (Yosemite Commrs. v. Barnard, 98 Cal. 199.)

S. F. Geil, J. H. Andresen, and Dorn & Dorn & Savage, for Bank of Monterey, Respondent, and J. K. Alexander, for T. J. Field, Administrator of Estate of George Brandt, Deceased, Respondent.

The acts of 1872 and 1899 are unconstitutional. (Const., art. IV, sec. 4; art. I, sec. 2; art. IV, sec. 25, subds. 3, 19, 33; Lewis v. Dunne, 134 Cal. 293, 295;4 Cullen v. Glendora, Water Co., 113 Cal. 513.) The Bank of Monterey is not estopped to deny the existence of the plaintiff corporation. (Bigelow on Estoppel, p. 460; Carpentier v. Brenham, 40 Cal. 236; Fresno Canal etc. Co. v. Warner, 72 Cal. 384.) There was prima facie evidence as to a merger of the prior mortgage in the fee, and the question of intention is one of fact to be tried and found. (Shaffer v. McCloskey, 101 Cal. 576; Rumpp v. Gerkens, 59 Cal. 501; Story’s Equity Jurisprudence, secs. 788, 790, 792; 1 Jones on Mortgages, sec. 848.) Cowan should have pleaded his intention at the time of the conveyance. (Pomeroy’s Equity Jurisprudence, sec. 792; Scrivner v. Dietz, 84 Cal. 295; Rumpp v. Gerkens, 59 Cal. 501; Brooks v. Rice, 56 Cal. 428; Hines v. Ward, 121 Cal. 115.) Cowan, having been made a party, should have set up all his rights as assignee. (Campbell v. West, 93 Cal. 656; Ford v. Bushard, 116 Cal. 276.)