MENT COMPANY OF LONDON (Lim- plaintiffs in error: ited). (See S. C., Reporter's ed., 1–7.) Homestead law-recording homestead agent of foreign corporation, for service of process. 1. A person is not entitled to the benefits of the homestead law of Colorado, unless the word "homestead" be entered on the margin of the recorded title of the premises occupied by him as a homestead; actual notice to creditors of the occupancy of particular premises as a homestead is not equivalent to such entry on the record. 2. An answer setting up the homestead exemption, which does not show a compliance with the statute, as to recording a homestead is fatally defective. 3. Where the Constitution and statutes of a State provide that "Foreign corporations shall, before they can do any business in the State, make and file a certificate designating an authorized agent in the State, residing at its principal place of business, upon whom process may be served," a certificate is in substantial conformity to the law, which designates the general manager of the corporation, residing at its principal place of business, as agent to receive service of process and it is not necessary to give the name of the particular person who happens, at the date of the certificate, to fill that position. [No. 177.] Submitted Dec. 20, 1883. Decided Jan. 7, 1884. IN ERROR to the Circuit Court of the United States for the District of Colorado. stead Acts. NOTE.-Exemptions from execution under homeThe exemption of a homestead from execution in the various States, by statute or constitution, protects it from forced sale. Grubbs v. Ellison, 23 Ark., 287; Spencer v. Geissman, 37 Cal., 96; Sampson v. Williamson, 6 Tex., 102; Smith v. Omans, 17 Wis., 395; Hawthorne v. Smith, 3 Nev., 182; Trotter v. Dobbs, 38 Miss., 189; Dreutzer v. Bell, 11 Wis., 114; Tucker v. Kenniston, 47 N. H., 267. An execution sale of a homestead in such States conveys no title to it, since the judgment is not a lien on it. Parkerson v. Wightman, 4 Strob., 363; Vogler v. Montgomery, 54 Mo., 577; Morris v. Ward, 5 Kan., 239; Lies v. Le Diabler, 12 Cal., 327; Wiggins v. Chance, 54 Ill., 175; Johnson v. Babcock, 8 Allen, 583; Lamb v. Shay, 14 Iowa, 567; Cummings v. Long, 16 Iowa, 41; Myers v. Ford, 22 Wis., 139; Revalk v. Kramer, 8 Cal., 66; Green v. Marks, 25 Ill., 221; Fishback v. Lane, 36 Ill., 437; Bliss v. Clark, 39 Ill., 500; Kendall v. Clark, 10 Cal., 17; Beecher v. Baldy, 7 Mich., 509; Ackley v. Chamberlain, 16 Cal., 181; Paxton v. Freeman, 6 J. J. Marsh., 234; Hamblin v. Worneke, 31 Tex., 681. The surplus arising from a foreclosure sale of a homestead cannot be applied to pay the personal debts of the husband. Ogden v. Giddings, 15 Tex., | It is not averred that the defendant, Harrison Goodwin, had ever caused the word "homestead" to be inscribed upon the record of his title to the premises, as apparently required by the 2d section of the statute, but the actual notice which the answer avers, supplies and excuses the constructive notice contemplated by the record. The Corporation had no power to contract in the State. The provision of the statute and the provision of the Constitution also are a positive prohibition upon the exercise of any corporate powers whatever. The words of the Act are amenda tory, and its purpose apparent. The consent given by the Act in question, was upon a condition precedent. Until this condition be performed, the Corporation is not a Corporation even de facto, within the limits of Colorado, and all attempts by it to exercise its corporate powers are contrary to law and mere nullities. Cheney, 3 Gray, 222; Roche v. Ladd, 1 Allen, In Re Comstock, 3 Sawy., 219; Williams v. 441; Ins. Co. Co. v. Pursell, 10 Allen, 232; Ins. Co. v. Slaughter, 20 Ind., 520; Ins. Co. v. Rosenthal, 55 Ill., 85; Ins. Co. v. Harvey, 11 Wis., 395; Lamb v. Lamb, 13 Bk. Reg., 19; Utley v. Mining Co., 4 Col., 370. 485; Morris v. Ward, 5 Kan., 239; Dickson v. Chorn, 6 Iowa, 19; Yost v. Devault, 9 Iowa, 60; Alley v. Bay, 9 Iowa, 509; Van Reynegan v. Revalk, 8 Čal., 75; Folsom v. Carli, 5 Minn., 333; Dorsey v. McFarland, 7 Cal., 342; Cook v. Klink, 8 Cal., 347; Williams v. Starr, 5 Wis., 534. An attachment upon land, prior to its occupation as a homestead, has a priority over the homestead exemption accruing subsequent to the levy of the attachment. Tuttle v. Howe, 14 Minn., 145; Krisin v. Marr, 15 Minn., 116: Hale v. Heaslip, 16 Iowa, 452; Tourville v. Pierson, 39 Ill., 446; Wright v. Dunning, 46 Ill., 276; Bullene v. Hiatt, 12 Kan., 98; Elston v. Robinson, 21 Iowa, 531; Austin v. Stanley, 46 N. H., 51; Coolidge v. Wells, 20 Mich., 70; Lee v. Miller, 11 Allen, 37. Unless the statute allows a debtor to sell or remove from the homestead regardless of the judgments against him, whenever it ceases to be a homestead or is conveyed. it becomes subject to sale and the purchaser takes it subject to the lien of judgments against his grantor. Allen v. Cook, 26 Barb., 374; Hoyt v. Howe, 3 Wis., 752; Simmons v. Johnson, 14 Wis., 523; Trustees, etc. v. Schell, 17 Wis., 308; McDonald v. Crandall, 43 Ill., 231; Coe v. Smith, 47 Ill., 225; Hewitt v. Templeton, 48 Ill., 367; Findley v. McConnell, 60 Ill., 259. [4] No counsel appeared for the defendant in er- | State, "Being the head of a family, shall be entitled to a homestead not exceeding in value the sum of $2,000, exempt from execution and at ror. Mr. Justice Harlan delivered the opinion of tachment arising from any debt, contract or the court: civil obligation entered into or incurred after The Colorado Mortgage and Investment Com-the first day of February, in the year of our pany of London (Limited), a Corporation organized under the laws of the United Kingdom of Great Britain and Ireland, brought this action against Harrison Goodwin and Elizabeth Goodwin, his wife, to recover the possession of certain real estate in Colorado and damages for withholding the same. In conformity with a written stipulation by the parties, the case was tried by the court without the intervention of a jury, and judgment rendered for the plaintiff. The lands in controversy were conveyed by Harrison Goodwin to David H. Maffat, Jr., in trust to secure certain promissory notes executed by the grantor to the plaintiff, and made pay-untarily mortgaging the same; Provided, No able at Denver, Colorado. The deed provided that, in case of default in the payment of the principal or interest of either of the notes, the trustee, on application in writing of the legal holder of the notes, might sell the premises at public auction after giving four weeks' previous notice of the time and place of sale by advertisement in any newspaper published in Boulder County; where, as we infer, the lands lie; and from the proceeds pay the principal and interest of the notes, whether due and payable by the tenor thereof or not. Lord 1868" (sec. 1); that "To entitle any per- There was such default and, under the authority given by the deed of trust, the lands were sold, the plaintiff becoming the purchaser and receiving a conveyance therefor from the trustee. The wife of Goodwin filed a separate answer, in which, among other things, it is alleged, that, at the time of the excution of the deed of trust, the premises in controversy were, as plaintiff well knew, occupied by her husband and herself as their homestead, and that her husband was a householder. By these allegations it was intended to question the validity, under the laws of Colorado, of the sale of the premises, in pursuance of the before mentioned deed of trust. The statutes of Colorado (Col. Gen. L., 1877, ch. 46) provide that every householder in that If the homestead exemption attaches to an estate less than the fee, it ceases on the termination of the estate. Brown v. Keller, 32 Ill., 151. Where the exemption is by statute a certain amount or value, and the property to which it attaches exceeds in value the amount allowed, the property may be sold on execution and the amount of the homestead exemption paid to the judgment debtor out of the proceeds of the sale and the surplus applied on the judgment. Dearing v. Thomas, 25 Ga., 223; Maxey v. Loyal, 38 Ga., 531; Welch v. Horine, 36 Ill., 238; Donald v. Crandall, 43 Ill., 231; Hume v. Gossett, 43 Ill., 407; Bennett v. Child, 10 Wis., 362; Morgan v. Stearns, 41 Vt., 398; Pittsfield Bk. v. Houcks, 4 Allen, 347; Fogg v. Fogg, 40 N. H., 282 No homestead is exempt from the vendor's claim for purchase money. Austin v. Underwood, 37 Ill., 438; Kitchell v. Burgwin, 21 Ill., 40; Phelps v. Conover, 25 Ill., 309; Montgomery v. Tutt, 11 Cal., 190; Skinner v. Beatty, 16 Cal., 156; Williams v. Young, 17 Cal., 403; Dillon v. Byrne, 5 Cal., 455; McHenry v. Reilly, 13 Cal., 75; Swift v. Kramer, 13 Cal., 526; Succession of Foulks, 12 La., 537; Farmer v. Simpson, 6 Tex., 303; Sheppard v. White, 11 Tex., 354: Stone v. Darrell, 20 Tex., 14; Burford v. Rosenfield, 37 Tex., 42; McManus v. Campbell, 37 Tex., 267; McCreevy v. Fortion, 35 Tex., 681; Ulrich's Appeal, 4 Pa., 489; Fehley v. Barr, 66 Pa., 196; McGhee v. Way, 46 Ga., The assignments of error do not present any question as to the sufficiency of that part of Mrs. Goodwin's answer which impeaches the truth of the officer's certificate of her acknowledgment of the trust-deed. But had they done so, it is sufficient, upon this branch of the case, to say that no one is entitled to the benefits of the foregoing statutory provisions unless the word "homestead" be entered on the margin of the recorded title of the premises occupied as a homestead. Such are the express words of the statute, and there is no room left for construction. We are not at liberty to say that the Legislature intended actual notice to creditors, of the occupancy of particular premises as a homestead to be equivalent to the entry on the record of title of the word "homestead." The requirement that the record of the title shall show that the premises are occupied as a homestead before any person can become entitled to the benefits of the statute, is absolute and unconditional. As 282; Pratt v. Topeka Bk., 12 Kan., 570; Buckingham v. Nelson, 42 Miss., 417; Stevens v. Stevens, 10 Allen, 146; N. E., etc., Co. v. Merriam, 2 Allen, 330; Perrin v. Serjeant, 33 Vt., 184; Cummings v. Long, 16 Iowa, 41. The sale of the homestead and the purchase, with the proceeds, of property of the same nature, gives the latter the same exemption as the former. Keyes v. Rines, 37 Vt., 260; Tillotson v. Wolcott, 48 N. Y., 188; Pearson v. Minturn, 181 Iowa, 36; Sargent v. Chubbuck, 19 Iowa, 37; Robb v. McBride, 28 Iowa, 386. Where a debtor abandons his homestead, the first execution levied on it has priority. Bliss v. Clark, 39 n., 590. In some States a homestead is liable for debts, contracted before its purchase or before its occupation. Potschinsky v. Kremlin, 26 Tex., 307; Stevens v. Stevens, 10 Allen, 146; Tucker v. Drake, 11 Allen, 145; Hale v. Heaslip, 16 Iowa, 451; Laing v. Cunningham, 17 Iowa, 510; Page v. Ewbank, 18 Iowa, 580; Delevan v. Pratt, 19 Iowa, 429; Hyatt v. Spearman, 20 Iowa, 510; Elston v. Robinson, 21 Iowa, 531; S. C., 23 Iowa, 408; Brainard v. Van Kuran, 22 Iowa, 261. A homestead is not exempt for debts contracted for improvements on it, except in Minnesota. Merchant v. Perez, 11 Tex., 20; Allen v. Hailey, 3 8. C., 412; Cogel v. Mickrow, 11 Minn., 475. the answer of Mrs. Goodwin did not show a | Corporation might be saved. We do not concur compliance, in that respect, with the statute, it in this construction of the statute. was fatally defective. The Constitution of Colorado provides (art. XV., sec. 10) that "No foreign corporation shall do any business in this (that) State without having one or more known places of business, and an authorized agent or agents in the same, upon whom process may be served." None of the points made by counsel for plaintiffs in error can be sustained, and the judgment must be affirmed. It is so ordered. True copy. Test: James H. McKenney, Clerk, Sup. Court, U.S. The statutes of the State provide that "Foreign corporations shall, before they are author- ALPHONSO L. MARTIN, Sheriff of Da ized or permitted to do any business in this [6] State, make and file a certificate signed by the president and secretary of such corporation, duly acknowledged, with the Secretary of State and in the office of the recorder of deeds of the county in which such business is carried on, designating the principal place where the business of such corporation shall be carried on in this State, and an authorized agent or agents in this State, residing at its principal place of business, upon whom process may be served." Gen. L. Col., 1877, p. 151, sec. 213. Prior to the execution of the before mentioned deed of trust or of the notes secured by it, the plaintiff caused to be filed in the office of the Secretary of State of Colorado and in the office of the recorder of Arapahoe County, a certificate signed by its president and secretary, and duly acknowledged, which stated "That the principal place where the business of said Corporation shall be carried on in the State of Colorado shall be at Denver, in the County of Arapahoe, in said State, and that the general manager of said Corporation, residing at the said principal place of business, is the agent upon whom process may be served in all suits that may be commenced against (said) Corporation." VIESS COUNTY, MISSOURI, WM. W. CLE- D. ALBERT S. WEBB, ROBT. L. BELKNAP, (See S. C., Reporter's ed., 7-15.) Authority of cashier of a bank-how conferred→ usage-knowledge of directors. 1. A banking corporation, whose charter does not otherwise provide, may be represented by its ties, without his authority to do so being in writing cashier in transactions outside of his ordinary duor appearing in the records of the proceedings of the directors. from circumstances or implied from the conduct or 2. His authority may be by parol, and collected acquiescence of the directors. 3. It may be inferred from the general manner in settled course of business, he has been suffered by which, for a period sufficiently long to establish a the directors, without interference or inquiry, to conduct the affairs of the bank. 4. When, during a series of years or in numerous official capacity and without objection, to pursue a business transactions, he has been permitted, in his particular course of conduct, it may be presumed, as between the bank and those who in good faith resent the corporation, that he has acted in condeal with it upon the basis of his authority to repformity with instructions received from those who have the right to control its operations. gence, to have known as to the general course of 5. That which directors ought, by proper dilithe bank's business, they may be presumed to have those who are justified by the circumstances in known in any contest between the corporation and dealing with it upon the basis of that course of busi The contention of plaintiffs in error is, that this certificate is materially defective, in that it does not designate the particular individual by name upon whom, as the agent of the Corporation, process may be served; that until this foreign Corporation filed such a certificate as the statute required, it was prohibited by the Constitution and laws of Colorado from doing any business in that State; and, consequently, that this deed of trust, executed and delivered in Colorado, and upon which its title to the prem-ness. ises in controversy rests, was void. We are of opinion that the certificate in question was in substantial conformity to the law. The requirement of the statute was met by the designation of the "general manager" of the Corporation, residing at its principal place of business, as agent to receive service of process. It was not necessary, as we think, to give the name of the particular person who happened, at the date of the certificate, to fill that position. The object of the statute could be best subserved [7] by a certificate of the character filed, for the obvious reason that the death or resignation of the incumbent would not long interfere with the bringing of suits against the Corporation. Had there been, when the certificate was filed, no such officer of the Corporation as a general manager, there would have been ground to contend that it had not performed the condition essential to its authority to do business in the State. But the answer makes no claim of that kind, but assumes that it was necessary to give the name of some individual upon whom process against the 110 U. S. U. S., Book 28. [No. 801.] Submitted Dec. 7, 1883. Decided Jan. 7, 1884. APPEAL from the Circuit Court of the Unitsouri. ed States for the Western District of Mis The appeal in this case is from the decree of the court below, in two cases, which were consolidated and heard together by consent of the parties. The first was commenced in the Circuit Court of Caldwell Co., Mo., June 17, 1880, by Albert S. Webb et al., Trustees under the will of Henry R. Remsen, against Alphonso Martin, Sheriff of Daviess Co., Mo.; Wm. W. Clevenger, Sheriff of Caldwell Co., Mo., and the Daviess Co. Savings Association, of Gallatin, Daviess Co., Mo., defendants, to enjoin the two Sheriffs *Head notes by Mr. Justice HARLAN. bind the bank. See note to Nat. Bk. v. Watsontown NOTE.-Duties of cashier of bank; when his acts Bk., 105 U. S., XXVI., 1039. 4 49 |