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Oakland v. Carpentier

Supreme Court of California
Apr 1, 1859
13 Cal. 540 (Cal. 1859)


In Oakland v. Carpenter, 13 Cal. 540 -542, the suit was in equity to set aside certain leases on the ground of fraud in procuring the same and for possession.

Summary of this case from Etenburn v. Neary


[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]          Rehearing Denied 13 Cal. 540 at 553.

         Appeal from the Third District.


         1. The deed and ordinances were void, because five Trustees were elected, and only four qualified. If the Board was first legally constituted by the election and qualification of five members, as required by law, (Act May, 1850,) then a majority could perform any official duty; not otherwise. (Leonard v. Darlington , 6 Cal. 123.) Hence, these deeds and ordinances are void. Where a deed, upon its face, purports to be executed in conformity to law, and the want of authority to execute it does not appear upon the deed, then the Court will declare the deed fraudulent and void, and will direct its cancellation or a reconveyance. (See 2 Story's Eq. 694; 1 Newland on Contracts, Ch. 94, p. 493; 1 Story's Eq. 91.)

         2. Had the Board been properly constituted, yet the grant of the exclusive privilege of constructing wharves, piers, docks, and of regulating the tolls thereon, and receiving the same, was null and void. These were public rights inherent in the corporation, and inalienable by the Trustees. (Minturn v. Larue et al., McAll. 370; Charles River Bridge, 11 Pet. 545; Fanning v. Gregor, 16 How. 524; Thatcher v. Dartmouth Bridge, 18 Pick. 501; Mills v. St. Clair, 8 How. 569; Susquehanna Canal Company v. Bonham, Sergt. & R.)

         3. The charges of fraud in the complaint are sufficient.

         4. It is contended that the act of limitations is a bar, and is available on demurrer.

         The 17th Section, upon which the respondent relies, applies only to actions other than those for the recovery of real property. Where suit is instituted for the recovery of real estate, although that real estate may have been obtained by the fraud of the defendant, it cannot be limited by the section relied on, for this would lead to the absurd conclusion that the Legislature meant to shield a possession obtained by fraud, by a limitation shorter than that fixed for the recovery of real property, or its rents, or servitudes, where no fraud exists.

         Besides, the suit is instituted against Horace W. Carpentier, a Trustee of an express trust, who has obtained possession of property committed to his charge by a fraudulent combination with his co-Trustees, and hence the statute of limitations is no bar. The case comes up to the principles onwhich Courts of Equity, in the exercise of their jurisdiction, repudiate the bar of the act of limitations in cases of trust.

         Thompson, Irving & Pate, for Appellant.

          E. W. F. Sloan, for Respondent.

         I. Where a number of persons are intrusted with powers not of a mere private confidence, but partaking of a general nature, when all have met, a majority can conclude a minority, and their act will be that of the whole. The cases of corporations go further; there, it is not necessary they should meet; it is enough if notice be given. (Per Ayre, Ch. J. in Grindley v. Barker, 1 Bos. & P. 236; Attorney-General v. Davy, 2 Atk. 212; King v. Burton, 3 T. R. 592; Rex v. Bellringer, 4 T. R. 822.) Nor can there be any difference, in principle or reason, between the case of a resignation by one member after his election and qualification, and that of a refusal or failure by one to qualify after an election. It seems not to be necessary, even, that the whole number should be elected. (Matter of the Union Ins., 22 Wend. 599; Vide Ex parte Willcocks, 7 Cow. 408.)

         II. As to the fraud, perhaps an act in the nature of a private Act of the Legislature can be annulled for fraud. (10 Amer. Jurist, 297, and cases cited.) This is not exactly a private act. But appellant cannot attack the act, and yet claim rights under it. The fraud alleged in passing the ordinances, and in making the conveyances to Carpentier, are vague. How can a Court notice it? What is the injury to Oakland? It nowhere appears that the grant of the land or wharf privileges was made without consideration, or upon inadequate consideration. The grant was " upon conditions." Carpentier was to construct the wharves at his own expense, and it does not appear that these conditions were unfair to the town, or that C. has failed to perform them. Neither the deed nor the ordinances are set forth. In short, it does not appear from the bill how Oakland has been injured; and Courts do not decide on abstract questions. The fraud alleged must have injured some one. (Chittenden v. Craig, 2 Bibb, 474; 1 Story's Eq. Jur. Sec. 203.) This is a case in which relief can only be granted upon terms. It is a case in which the plaintiff must offer to do equity to the defendants. The bill makes no such offer, and is clearly demurrable for that reason. (1 Story's Eq. Jur. Sec. 64; 2 Id. Secs. 693, 694.) The ratification by ordinance, in1853, was made with a full knowledge of the facts. Chancery has no power to rescind contracts arbitrarily; and where new stipulations have been made concerning them, the Court will not interfere. (3 J. Ch. 23; 17 J. R. 437; Sadler v. Robinson, 2 Stew. 510; 1 Story's Eq. Jur. Sec. 203; Gas Co. v. City of San Francisco , 9 Cal. 453.

         III. The Statute of Limitations constitutes a complete bar to the relief sought; and is available on demurrer. (Vide Story's Eq. Plead. Secs. 503, 750, 751; 1 Dan. Ch. Pr. 623, 624, Perk. Ed.; ) Sublette v. Tinney , 9 Cal. 423. Our Statute of Limitations applies alike to suits in equity and actions at law. It was suggested by counsel for the appellant, that the case does not fall within the provisions of the 3d Chapter of the Act of Limitations; that the 2d Chapter is the only one applicable to suits in respect to real estate. Chapter 2 does not apply to proceedings for the purpose of setting aside legal titles as fraudulent, but to an action for the recovery of possession after a successful determination of the former proceedings.

         Whether this case comes within the provisions of Section 19, or the second class in Section 17, it isstill barred.

         There is no pretense of recent discoveries; on the contrary, whatever is known must have been discovered at the time.

         The wharf privilege is but a chattel interest, and clearly falls within the second class of cases mentioned in Section 17.

         The right or power of the corporation to demise for a term the right of constructing wharfs, and the taking of wharfage, cannot be questioned. (Kent's City Charters; Costar v. Brush, 25 Wend. 631.

         JUDGES: Baldwin, J. delivered the opinion of the Court. Terry, C. J. concurring.


          BALDWIN, Judge

         On petition for rehearing, Baldwin, J. delivered the following opinion--Field, C. J. concurring.

         Petition for rehearing denied. The opinion modified so as to leave open for future revision the question of the validity of the contract with Carpentier, under the ordinance referred to in the opinion.

Summaries of

Oakland v. Carpentier

Supreme Court of California
Apr 1, 1859
13 Cal. 540 (Cal. 1859)

In Oakland v. Carpenter, 13 Cal. 540 -542, the suit was in equity to set aside certain leases on the ground of fraud in procuring the same and for possession.

Summary of this case from Etenburn v. Neary

In Oakland v. Carpentier, 13 Cal. 540, 552, the court considered section 17 (Woods' Digest, 47), which is the same as subdivision 4 of section 338 of the Code of Civil Procedure, except that the words "or mistake" have been inserted after the word "fraud."

Summary of this case from Goodnow v. Parker
Case details for

Oakland v. Carpentier

Case Details


Court:Supreme Court of California

Date published: Apr 1, 1859


13 Cal. 540 (Cal. 1859)

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