Bank of Martinez v. Orchard & Land Co.

This appeal was taken by the Hemme Orchard and Land Company, from an order refusing a new trial.

The plaintiff is a corporation incorporated under the laws of this state in 1873. The articles of incorporation specify that the corporators desire to incorporate under the laws of the state of California, in relation to the formation of corporations, “ embraced in title (1) one, *377 part four (IV) of division first of the Civil Code of this state,” and further, “that the purposes for which said corporation is formed are to engage in and carry on the business of banking to such extent, and in such branches, as may legally be done under the constitution and-laws of the state of California.”

The action was brought to foreclose a mortgage given by defendants August and Minerva E. Hemme-to plaintiff, to secure a loan made to them by plaintiff.

Appellant contends that the mortgage is invalid because ultra vires; and illegal because forbidden by sections 34 and 35 of article IV of the constitution of 1849, which was in force when plaintiff was incorporated.

1. So far as the first point depends upon the provisions of the Civil Code we are unable to see any force in it. The code…