Hill-Davis Co., Ltd. v. Atwell

THE COURT.

The principles determinative of this appeal are well settled. Respondent company, on May 1, 1930, contracted with appellant to sell, and appellant agreed to buy, certain real property owned by respondent in Humboldt County, California. Within the time provided for in the contract respondent tendered a deed to the premises. This deed named as grantor “Hill-Davis Company, Limited, an association organized and existing under and by virtue of the laws of the state of Michigan, licensed and admitted to do business in the state of California”. This deed appellant refused to accept solely on the ground that respondent is in fact a partnership, and as such has no power or capacity to hold or convey title to real property in its firm name. It should be here mentioned that it is conceded that if respondent is in fact a partnership it had no power to hold or convey title to real property in its firm name. (20 Cal. Jur. 722, sec. 39.) The property involved herein was acquired over a period of time antedating the adoption in this state in 1929 of the Uniform Partnership Act, by the express terms of which real property may be acquired in the partnership name and “title so acquired can be conveyed in the partnership name”. (Sec. 2402, Civ. Code.) We do not find it necessary to determine whether that section is retroactive for the reason that we are of the opinion that respondent, as

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far as its power to hold or convey real property is concerned, is not a partnership but is a corporation.

The present controversy was submitted to the trial court upon an agreed statement of facts, under the provisions of section 1138 of the Code of Civil Procedure. That court determined that respondent has the power to hold and convey title to its California properties in its firm name, and based on this determination decreed that respondent was entitled to specific performance.

From the stipulated facts it appears that respondent was organized in 1906 under and by virtue of the laws of the state of Michigan; that the act under which it was organized is entitled “An act authorizing the formation of partnership associations, in which the capital subscribed, shall alone be responsible for the debts of the association, except under certain circumstances,” (Public Acts of Michigan, 1877, Act No. 191, as amended, Compiled Laws of Michigan (1915), see. 7950 et scq.) ; that respondent has complied with all of the requirements of that act; that in 1906 respondent came to California and engaged in business in this state as a foreign corporation; that at the time of entering this state and ever since it has complied with all of the laws thereof applicable to foreign corporations; that while engaged in business in this state it purchased in the firm name the real properties involved.