Approved in Gilbert v. American Surety Co., 121 Fed. 503, 61 L. R. A. 253, 57 C. C. A. 619, holding sale fully executed and property returned to vendor as trustee, vendor estopped claiming sale void; Erb v. McMaster, 88 Neb. 820, 130 N. W. 577, where husband had accepted benefits of pre-nuptial contract, he was estopped from alleging its invalidity; Thompson v. Murphy, 60 W. Va. 49, 6 L. R. A. (N. S.) 311, 53 S. E. 911, where full knowledge of material facts connected with unauthorized act of agent was not in possession of principal, silence was not ratification; Brush Electric Co. v. California etc. Light Co., 52 Fed. 964, 3 C. C. A. 368, license given for exclusive right before issue of patent, validity cannot be denied after large business acquired; Hatch v. Ferguson, 66 Fed. 672, 14 C. C. A. 41, principal is estopped to deny power of attorney, improvements being made; Beatty v. Sweeney, 26 Mich. 221, one ignorantly disclaiming ownership is estopped to claim title.

Distinguished in Reed v. Crapo, 127 Mass. 40, persons present at sale by collector, and receiving payment, may waive informality, but not for their co-owners; Mobile etc. Ry. Co. v. Jay, 65 Ala. 116, principal receiving no direct benefit and other not injured by absence of prompt repudiation, ratification not presumed from mere silence.

Defect in constitution of corporation cannot be taken advantage of collaterally.

Approved in Kardo Co. v. Adams, 231 Fed. 968, 971, in suit by de facto corporation for infringement of patent, wrongdoer could not deny capacity of corporation to sue; Deitch v. Staub, 115 Fed. 315, 53 C. C. A. 137, holding stockholder estopped from pleading irregular organization in action to foreclose mortgage; Jones v. Habersham, 107 U. S. 188, 27 L. Ed. 406, 2 Sup. Ct. 348, heirs cannot object that corporation cannot hold devised property; Fritts v. Palmer, 132 U. S. 292, 33 L. Ed. 321, 10 Sup. Ct. 96, corporate right to hold land cannot be raised in ejectment by grantor or successors; McBroom v. Scottish Mortgage etc. Co., 153 U. S. 326, 38 L. Ed. 732, 14 Sup. Ct. 855, debtor cannot object to repayment of legal amount, where usurious interest is forbidden; Farmers' Loan & Trust Co. v. Green Bay etc. R. Co., 11 Biss. 339, 12 Fed. 776, corporation may recover for injury to land it is not authorized to hold: Sherwood v. Alvis, 83 Ala. 118, 3 Am. St. Rep. 696, 3 South. 308, one benefited by contract cannot object to right of corporation; Merchants & Manufacturers Bank v. Stone, 38 Mich. 782, those lending to corporation cannot deny its existence and charge members as partners; Crolley v. Minneapolis etc. Ry. Co., 30 Minn. 544, 16 N. W. 424, plaintiff whose land is condemned and transferred cannot question capacity of either company; Society Perun v. Cleveland, 43 Ohio St. 496,

3 N. E. 363, a judgment of ouster is not retroactive and cannot affect parties who have dealt with corporation; Wright v. Lee, 2 S. D. 617,

429

51 N. W. 713, the election of de facto directors cannot be disputed by creditors; Building etc. Assn. of Dakota v. Chamberlain, 4 S. D. 279, 56 N. W. 899, contractor receiving benefits cannot object that the incorporation law is unconstitutional; Citizens' State Bank v. Hawkins, 71 Fed. 371, 18 C. C. A. 78, and American Button Hole etc. Co. v. Moore, 2 Dak. 292, 8 N. W. 135, prohibition to do business does not prevent suit; Board of Commrs. of Tippecanoe County v. Lafayette etc. R. R., 50 Ind. 107, arguendo.

Distinguished in Grand etc. Bridge Co. v. Prange, 35 Mich. 403, 24 Am. Rep. 588, one sued for tolls may claim the right to collect has expired; Douthitt v. Stinson, 63 Mo. 278, deed to corporation having no existence is an absolute nullity; Estate of McGraw, 111 N. Y. 99, 100, 2 L. R. A. 394, 19 N. E. 250, heirs may object that institution cannot take devise.

One selling land to a corporation de facto, and receiving consideration, cannot question its capacity to take, unless there is a judgment of ouster by government.

Approved in Kerfoot v. Farmers' etc. Bank, 218 U. S. 286, 54 L. Ed. 1043, 31 Sup. Ct. 14, and Barron v. McKinnon, 196 Fed. 939, 116 C. C. A. 483, both holding, conveyance of real estate to national bank for purpose not authorized, was not void, but voidable; West Virginia Pulp etc. Co. v. Miller, 176 Fed. 293, 100 C. C. A. 176, upholding right of owner of land to devise it in trust for sale for benefit of religious corporation; Iowa etc. Min. Co. v. United States Fidelity & Guaranty Co., 146 Fed. 440, defendant sued by foreign corporation on contract made with it cannot defend because corporation has not complied with laws relating to such corporations; Southern Trust etc. Co. v. Yeatman, 130 Fed. 800, where, on organization, corporation received stock in another corporation in payment for its stock and received dividends thereon for two years, it is for jury to say whether stockholders had ratified transaction; State v. American Book Co., 69 Kan. 10, 13, 1 L. R. A. (N. S.) 1041, 76 Pac. 414, 415, contracts with foreign corporation before it has obtained statutory permission to do business in State are not voidable at suit of one of contracting parties; Summet v. City Realty etc. Co., 208 Mo. 512, 106 S. W. 617, borrower of money from life insurance company, could not question its power to lend or take deed of trust; Mansfield v. Neff, 43 Utah, 276, 134 Pac. 1166, devise over to church of Latter Day Saints, could only be attacked in proceeding by statute; Postal Tel. Cable Co. v. Oregon etc. S. Ry. Co., 23 Utah, 483, 90 Am. St. Rep. 712, 65 Pac. 738, refusing to inquire into de facto corporation's existence in action by telegraph company against railroad company to condemn right of way; Myers v. Croft, 13 Wall. 295, 20 L. Ed. 563, Fritts v. Palmer, 132 U. S. 292, 33 L. Ed. 321, 10 Sup. Ct. 96, Broadwell v. Merritt, 87 Mo. 101, 102, Reinhard v. Virginia etc. Mining Co., 107

Mo. 627, 28 Am. St. Rep. 446, 18 S. W. 19, Myers v. Croft, 2 Neb. 481, and Jones v. Hale, 32 Or. 470, 52 Pac. 313, all disallowing grantor or those under him to question corporate capacity to hold land; Chattanooga etc. R. Co. v. Evans, 66 Fed. 815, 14 C. C. A. 116, creditors cannot question corporate right to dispose of land, which it was prohibited to acquire; Sherwood v. Alvis, 83 Ala. 118, 3 Am. St. Rep. 696, 3 South. 308, one benefited by contract cannot object to corporate rights; South etc. R. R. Co. v. Highland etc. R. Co., 119 Ala. 117, 24 South. 118, right to hold acquired property can only be raised by State; Cowell v. Colorado Springs Co., 3 Colo. 92, vendee of land from corporation cannot question its right; Weber v. Fickey, 52 Md. 516, land sold to corporation and stock issued, vendor cannot claim it overvalued in defense to suit for contribution; White Oak etc. Society v. Murray, 145 Mo. 629, 47 S. W. 502, though company was not yet incorporated; Wright v. Lee, 2 S. D. 617, 51 N. W. 713, election of de facto directors cannot be questioned by creditors.

Distinguished in McCormick v. Market National Bank, 165 U. S. 552, 41 L. Ed. 822, 17 Sup. Ct. 437, lease to national bank not authorized to do business is void, and will only support action for what was received; Davis v. Old Colony R. R. Co., 131 Mass. 273, 41 Am. Rep. 236, money subscribed for a purpose beyond power cannot be recovered; Estate of McGraw, 111 N. Y. 99, 2 L. R. A. 394, 19 N. E. 250, heirs may object that institution cannot take devise.

Effect of ultra vires purchase of land by corporation. Note, 17
Ann. Cas. 531.

Right of private person to contest corporation's power to take or
hold property. Note, 32 L. R. A. 295.

12 Wall. 362-365, 20 L. Ed. 343, UNITED STATES v. NEW ORLEANS R. R. CO.

Mortgages covering after-acquired property only attach to it in the condition in which it comes into mortgagor's hands.

Approved in Central Improvement Co. v. Cambria Steel Co., 201 Fed. 827, 120 C. C. A. 121, after-acquired clause of mortgage attached only to interest acquired by mortgagor, being always subject to junior liens and equities; In re Sunflower State Refining Co., 195 Fed. 184, 185, 186, 187, 115 C. C. A. 132, where machinery was furnished company under recorded conditional sale contract and attached to cement floor, it remained personalty and superior to prior mortgage containing afteracquired clause; Tippett v. Barham, 180 Fed. 80, 81, 37 L. R. A. (N. S.) 119, 103 C. C. A. 430, under after-acquired property clause in mortgage, structure affixed to freehold, became subject to lien of mortgage; Union Trust Co. v. Southern Sawmills etc. Co., 166 Fed. 200, 201, 92 C. C. A. 101, conditional sale contracts of personal property are required to be

recorded as chattel mortgages; Farmers' Loan etc. Co. v. Denver etc. Ry. Co., 126 Fed. 49, 60 C. C. A. 588, holding mortgage covering afteracquired property inferior to junior liens, encumbrances, and equities under which property comes to mortgagor; Contracting & Building Co. v. Continental Trust Co., 108 Fed. 4, 47 C. C. A. 143, applying rule and holding locomotives passed subject to vendor's lien; J. L. Mott Iron Works v. Middle States Loan etc. Co., 17 App. D. C. 598, upon forcclosure sale of realty under mortgage, radiators and valves not yet paid for, did not pass to purchaser; Detroit Trust Co. v. Detroit etc. Ry. Co., 159 Mich. 456, 124 N. W. 51, rails and other articles becoming affixed to and part of railroad covered by prior mortgage, held by lien of mortgage, as against contract of furnisher of such property; Hammel v. First Nat. Bank of Hancock, 129 Mich. 177, 95 Am. St. Rep. 432, 88 N. W. 397, holding mortgage contemporaneous with purchase of chattels entitled to preference over prior mortgage covering after-acquired property; Fred W. Wolf Co. v. Herman Savings Bank, 168 Mo. App. 554, 153 S. W. 1096, where machinery placed in plant could be removed without injury to freehold title, remained in seller until paid for, as against prior mortgagee of realty; Knickerbocker Trust Co. v. Carteret Steel Co., 79 N. J. Eq. 506, 82 Atl. 149, applying rule where vendor's lien and lien of mortgage hostile to each other, arose simultaneously out of same transaction; McAdams v. Piedmont Trust Co., 167 N. C. 498, Ann. Cas. 1916B, 669, 83 S. E. 625, mechanic's lien for work on building, was subject to lien of deed of trust already registered; Cox v. New Bern Lighting & Fuel Co., 151 N. C. 67, 69, 134 Am. St. Rep. 966, 18 Ann. Cas. 936, 65 S. E. 650, 651, mortgage of gas plant covering after-acquired property, did not cover apparatus subsequently purchased and added to plant; Cummings v. Consolidated Mineral Water Co., 27 R. I. 204, 61 Atl. 356, where mortgage provided that mortgagor should not suffer mechanic's lien on property which might be held prior to mortgage, and that after-acquired property might be mortgaged for improvements, mechanic's lien for improvements on after-acquired realty had priority; Horner-Gaylord Co. v. Fawcett, 50 W. Va. 493, 40 S. E. 567, holding deed of trust covering after-acquired property duly recorded not fraudulent per se or prima facie so to subsequent creditors; Fosdick v. Schall, 99 U. S. 251, 25 L. Ed. 342, trustee takes, subject to claim of maker, under agreement; Bear Lake etc. Irr. Co. v. Garland, 164 U. S. 16, 41 L. Ed. 333, 17 Sup. Ct. 11, mechanic's lien for ditch is superior; Western Union Tel. Co. v. Burlington etc. Ry. Co., 3 McCrary, 140, 11 Fed. 7, mortgagee takes subject to rights of a telegraph company in line; Hardesty v. Pyle, 15 Fed. 779, not covering rolling stock of another placed on road under contract; Loomis v. Davenport etc. R. R. Co., 3 McCrary, 495, 17 Fed. 305, is subject to vendor's lien on real estate;

Frank v. Denver etc. Ry. Co., 23 Fed. 126, subject to mortgage of rolling stock given to vendor; Central Trust Co. v. Marietta etc. Ry. Co., 48 Fed. 870, 874, 1 C. C. A. 133, subject to reservation of title under sale though not recorded; Holly Mfg. Co. v. New Chester Water Co., 48 Fed. 888 (affirmed in New Chester Water Co. v. Holly Mfg. Co., 53 Fed. 30, 3 C. C. A. 399), grantee of land with notice of lien on pumping-engines thereon, takes subject thereto; Fidelity Ins. etc. Co. v. Norfolk etc. R. R. Co., 72 Fed. 706, 707, receiver, under foreclosure, takes a spur track, subject to an agreement in regard to payment therefor; St. Joseph etc. Depot Co. v. Chicago etc. Ry. Co., 89 Fed. 654, 32 C. C. A. 284, and St. Joseph etc. Depot Co. v. Chicago etc. Ry. Co., 131 Mo. 310, 31 S. W. 913, both holding purchaser, under mortgage, takes, subject to rental payments for depot; Harris v. Youngstown Bridge Co., 90 Fed. 328, 33 C. C. A. 69, one advancing money and receiving mortgage for improvements, not contemplated at time of prior mortgage, covering after-acquired property, is superior thereto; Evans v. Kister, 92 Fed. 834, 836, 35 C. C. A. 28, holding failure of payee to register mortgage did not discharge surety; Wood v. Holly Mfg. Co., 100 Ala. 351, 46 Am. St. Rep. 65, 13 South. 954, bondholders subject to contract lien on machinery affixed to land; Warren v. Liddell, 110 Ala. 247, 20 South. 93, mortgagee taking deed is subject to claim of conditional vendor of machinery; removable without injury, though affixed; Jarvis v. State Bank, 22 Colo. 318, 55 Am. St. Rep. 136, 45 Pac. 509, mechanic's lien on flume superior; Binkley v. Forkner, 117 Ind. 185, 3 L. R. A. 36, 19 N. E. 757, general mortgage subordinate to chattel mortgage on machinery removable without injury; Russell v. Grant, 122 Mo. 178, 43 Am. St. Rep. 569, 26 S. W. 961, purchase money mortgage of land precedes mechanic's lien simultaneously attaching; Williamson v. New Jersey etc. Ry. Co., 28 N. J. Eq. 298 (reversed on another point in 29 N. J. Eq. 317), mortgage of afteracquired property subordinate to mechanic's lien; United etc. Canal Co. v. Long Dock Co., 42 N. J. Eq. 551, 9 Atl. 588, mortgage by a coowner, before partition, is subject to lien of costs of protecting title by agreement between owners; Campbell v. Roddy, 44 N. J. Eq. 252, 6 Am. St. Rep. 896, 14 Atl. 283, vendor's mortgage on affixed chattels is superior to general mortgagee, so far as it does not diminish its security; Daly v. New York etc. Ry. Co., 55 N. J. Eq. 602, 38 Atl. 205, purchase-money mortgage for land is superior; General Electric Co. v. Transit Equipment Co., 57 N. J. Eq. 474, 476, 42 Atl. 106, 107, general mortgage subordinate to conditional contract of sale; Zorn v. Savannah etc. R. R. Co., 5 S. C. 95, purchase-money mortgage superior to trustees' or bondholders'; dissenting opinion in Kilpatrick v. Kansas etc. R. R. Co., 38 Neb. 644, 645, 57 N. W. 672, majority holding promoter's mort

gage inferior to liens for labor and materials; Beall v. White, 94 U. S.