GILBERT V. HOLE.

(Supreme Court of South Dakota. June 19, 1891.) CORPORATIONS-Power to TAKE REAL ESTATE.

1. The rule is general that, where a corporation is authorized for some purposes, or to a limited extent, to take conveyance of and hold real estate, a deed of lands for other purposes, or beyond the limit allowed, is not absolutely void, but passes the title as between the parties, subject only to be inquired into in a direct proceeding by the state.

2. Whether a deed to a corporation, forbidden by its charter or the law under which it is organized to take or hold real estate for any purpose, is void, or only voidable at the instance of the state, is not involved in this case, and is not decided.

3. A corporation organized for the purpose, among others stated, of buying and selling personal property, is to that extent at least organized for a legal purpose, and may, under section 7, art. 17, of the constitution, take and hold such real estate as may "be necessary and proper for its legitimate business;" and, under the rule first above announced, whether such corporation has taken the title to lands described for a purpose other than that allowed by the constitution is a matter between the government of the state and the corporation.

4. An undisputed allegation in the complaint, that the land described was purchased by such corporation for the "sole purpose of speculation and profit, " does not withdraw the case from the dominion of the rule. It is a question of the power of the corporation to receive title; not a question of the conditions under which such power may be exercised, or whether in any case such conditions have been met.

(Syllabus by the Court.)

Appeal from circuit court, Beadle county.

Kirke W. Wheeler, for appellant. Melville & Langley, for respondent.

KELLAM, P. J. Plaintiff's complaint states the following facts as constituting his cause of action: (1) That the Middlesex Banking Company is a corporation organized under the laws of the state of Connecticut, and that its general business is loaning money, and taking as security therefor mortgages upon real estate in South Dakota and other states and territories. (2) That the Union Investment Company is a corporation organized under the laws of the state of Minnesota, and that its general business, as set forth in its articles of incorporation, is to buy, | v.49N.w.no.1-1

hold, improve, lease, sell, and deal in lands, tenements, and hereditaments, and any property, real, personal, or mixed, wherever situated; to subdivide, plat, and lay out lands into towns, additions, and building grounds; and that its principal place of business is the city of St. Paul, Minn. (3) That in May, 1887, the said Middlesex Banking Company loaned to one James a sum of money, and took as security therefor a mortgage upon real estate, therein particularly described, in Beadle county, then territory of Dakota, now state of South Dakota. That upon default in the payment of said mortgage the said com. pany caused the same to be foreclosed, and to protect its interests purchased said mortgaged premises at such foreclosure sale, and through said foreclosure proceedings became the owner in fee-simple of said lands. (4) That afterwards, in December, 1889, the said Middlesex Banking Company, by deed in all respects in proper form, acknowledged and delivered, attempted to convey said lands in fee-simple to said Union Investment Company, which deed was recorded in the office of the register of deeds of said Beadle county December 15, 1889; and that said Union Investment Company made said pretended purchase of said lands for the sole purpose of speculation and profit. (5) That in September, 1890, the said Union Investment Company executed in due form its deed of said lands, by which it undertook to convey the same to the defendant herein, who now unjustly and wrongfully claims to hold and own said lands under and by virtue of said pretended conveyance. (6) That in September, 1890, the Middlesex Banking Company, by deed in proper form, duly acknowledged and delivered, conveyed said lands to plaintiff, not having made any other conveyance of said lands, except as aforesaid to the said Union Investment Company. The relief asked was that the conveyance from the Middlesex Banking Com· pany to the Union Investment Company, and the conveyance from the Union Investment Company to defendant, be declared void and of no effect, and that the title to said lands be quieted in plaintiff. To such complaint defendant demurred upon the grounds: (1) That the same does not state facts sufficient to consti

tute a cause of action. (2) That the complaint alleges that the title of defendant is derived from the Union Investment Company, a corporation, and that under the laws of the state of South Dakota, to-wit, section 7, art. 17, of the constitution of the state of South Dakota, a corporation cannot take, hold, and transfer the title of lands for proft. The demurrer was sustained, and the action dismissed, and from such order and judgment plaintiff appeals.

Said section 7, art. 17, of the constitution, is as follows: "No corporation shall engage in any business other than that expressly authorized in its charter, nor shall it take or hold any real estate except such as may be necessary and proper for its legitimate business."

The plaintiff derived his title directly, and the defendant his indirectly, from the same source,-the Middlesex Banking Company. If that company had power to convey to plaintiff the title which he asserts and seeks to maintain as the foundaton of this action, it had the power to convey to the Union Trust Company, unless the latter company was incapacitated to take the title, and for that reason the attempt to convey failed for want of a competent grantee. If the Union Investment Company was qualified to take the title, or did in fact take it, that would settle plaintiff's claim to title, for the investment company's deed was prior in delivery and recording to that of plaintiff. It is plain that, if the deed of the Middlesex Banking Company to the Union Investment Company was sufficient to divest the former of his title, its subsequent deed to plaintiff was inoperative and futile, for it then had no title to convey The principal question discussed in the briefs of counsel is the power and capacity of a corporation to take, hold, and convey real estate for profit under the provisions of the constitution above quoted. There is, however, a question in this case preliminary to the one discussed by counsel, and that is whether, conceding that the constitutional provision quoted is intended to and does prohibit the Union Investment Company from buying and selling real estate "for the sole purpose of speculation and profit," can such prohibition be enforced, and a conveyance to such corporation be held absolutely void, in a collateral action between third parties? We think it has been pretty generally held that where a corporation is authorized for some purposes or to a limited extent to take conveyance of and hold real estate, a deed of lands for other purposes, or beyond the limit allowed, is not absolutely void, but passes the title as between the parties, subject only to be inquired into in a direct proceeding by the State. In Dill. Mun. Corp. (4th Ed.) § 574, the rule is stated thus: "Whether a municipal corporation, with power to purchase and hold real estate for certain purposes, has acquired and is holding such property for other purposes, is a question which can only be determined in a proceeding instituted at the instance of the state. If there is capacity to purchase, the deed to the corporation divests the estate of the grantor,

and there is a complete sale; and whether the corporation in purchasing exceeds its powers is a question between it and the state, and does not concern the vendor or others. See, also, to the same effect, Cowell v. Springs Co., 100 U. S. 60; Bank v. Matthews, 98 U. S. 628; Mining Co. v. Clerkin, 14 Cal. 552; Hayward v. Davidson, 41 Ind. 214; Barnes v. Suddard, 117 Ill. 237, 7 N. E. Rep. 477; Goundie v. Northampton, etc., Co., 7 Pa. St. 233; De Camp v. Dobbins, 29 N. J. Eq. 36. In Cowell v. Springs Co., supra, Mr. Justice FIELD, Speaking for the court, said: "It would create great inconveniences and embarrassments if in actions by corporations to recover possession of their real property, an investigation was permitted into the necessity for such property for the purposes of the incorporation, and the title made to rest upon the proof of that necessity." This was said in an action where the corporation itself was a party; but the reasoning must apply with greater force in a case like this, where the corporation whose right to take and convey is the proposed subject of inquiry is not before the court. A different question, however, is recognized when the inquiry is as to the effect of a conveyance to a corporation whose charter, or the law under which it is organized, forbids it to take or hold real estate for any purpose. In such case there would seem to be wanting the capacity to take title, but even then the authorities differ as to whether a deed to such a corporation is void, or only voidable at the instance of the state. In Ang. & A. Corp. § 152, it is said: "There can be no doubt that if a corporation be forbidden by its charter to purchase or take lands, a deed made to it would be void, as its capacity may be determined from the instrument which gives it existence;" but in Hickory Farm Oil Co. v. Buffalo, etc., R. Co., 32 Fed. Rep. 22, the plaintiff was a New York corporation, having taken deed to real estate in Pennsylvania. The statute of the latter state forbids a foreign corporation to "acquire and hold" real estate. ejectment by plaintiff the court held that the deed to plaintiff was not void, but that it conveyed the title of the grantor, and that the commonwealth alone could object to the legal capacity of the plaintiff to hold the real estate. For the purposes of this case, however, it is not necessary to pursue the discussion upon this point. The cases in which the deed to a corporation has been held void and inoperative are those in which such corporation, either by its charter or by the law, is forbidden to acquire real estate at all,-cases in which it has been held there was an utter want of capacity in the corporation to receive title; but in the case before us the Union Investment Company was incorporated for the purpose, among others, of buying and selling personal property. To that extent it was organized for a legal purpose, even conceding that its business of dealing in real estate for profit was illegal. It was a corporate body, some of whose purposes at least were legal and legitimate; and as such it had the power to take and hold such real estate as might "be necessary and proper for its

In

legitimate business." In this respect the case is like Cowell v. Springs Co., supra, and would come very clearly under control of the same rule as applied in that case, to-wit, that whether the corporation has taken the title of the lands described for a purpose other than that allowed by the constitution "is a matter between the government of the state and the corporation." True, it is alleged in the complaint, and must be taken as admitted, that this land was purchased by the Union Investment Company for the sole purpose of speculation and profit, but that, we think, does not withdraw the case from the dominion of the rule first noticed. The rule is general that, when the corporation has capacity to take title under certain conditions, it cannot be the subject of inquiry between third parties whether in any case the requisite conditions were met, or the title made to depend upon proof as to whether in such case the corporation was acting within its power in taking or attempting to take such title. It is a question of the power of the corporation to receive the title, not a question of the conditions under which such power may be exercised. If the power exists, the state only can question the manner of its exercise. Such is very clearly the teaching of the cases cited supra. If these views are correct, it necessarily follows that as between the parties the deed from the Middlesex Banking Company to the Union Investment Company conveyed the title to the land in question, so that nothing remained in the former company for its subsequent deed to plaintiff to operate upon; leaving the further conclusion inevitable that in his complaint the plaintiff does not state facts which constitute a cause of action in his favor, and that the demurrer was properly sustained. The order and judgment of the court below is affirmed. All the judges concurring.

STATE V. LEEHMAN.

(Supreme Court of South Dakota. June 19, 1891.) ASSIGNMENTS OF ERROR ON APPEAL-EXPERT TESTIMONY-CROSS-EXAMINATION-INSANITY AS DE

FENSE TO CRIME.

1. The rule of the Code requiring the alleged errors sought to be reviewed to be specifically designated should be respected by both court and counsel, and ordinarily an assignment alleging error in the admission of any evidence of a character or for a purpose named will be disregarded as too general. This being a case involving a human life, the rule is relaxed, and the record examined.

2. A non-expert witness will be allowed to express his opinion as to the mental condition of a person, after having stated the facts upon which such opinion is based; but to authorize the expression of such opinion the witness must state facts which have some significance upon the question of such mental condition.

3. A witness was asked particularly to state how the defendant acted,-his acts and conduct. He answered: "His acts were insanity, I say. This was neither a statement of facts as to defendant's conduct, nor the expression of an opinion that he was then authorized to make, and it was not error for the trial court to rule it out.

4. Another non-expert witness was asked: "Now, from facts within your personal knowledge that you have related upon the witness stand, what was your opinion as to the sanity or

insanity of the defendant, Leehman, at those times?" The court sustained the objection of the state to this question. The witness was then asked: "From facts within your personal knowlopinion as to whether the defendant Leehman edge that you have testified to you may state your

His

was rational or irrational at those times?" answer was: "During the times that I have seen him I have always considered him irrational when excited. " These questions were so nearly synonymous that if there was error in disallowing the first it was cured by allowing the second, particularly when considered in connection with his immediately subsequent testimony on cross-examination, as follows:

5. On his cross-examination this witness was asked: "State from what you know of him, and have seen of him, whether he would be apt to know right from wrong?" His answer, taken over the objection of defendant, was: "I think he knows right from wrong.

"

6. This was proper cross-examination, for the test of responsibility is the capacity to distinguish right from wrong, and, taking the three questions and answers together, there was no error in the rulings of the court that could have prejudiced defendant.

7. Upon redirect examination this witness was asked: "Is it your opinion that an irrational man can always know right from wrong?" The state objected, and there was no error in sustaining the objection. The witness was not an expert from whom an opinion upon such matter was competent, nor was he being cross-examined. 8. The mental insanity which does not destroy the capacity to know right from wrong constitutes no defense to crime.

9. Evidence of the subsequent acts and conduct of a person is often competent as bearing upon his mental condition at a prior time, but it is not admissible as of course. The inquiry always and necessarily involves not only the question of intervening time, but also the character of the manifestations, and the circumstances under which they are observed. There is no error in excluding evidence of subsequent acts and conduct, which could have no probative force or significance upon the question of mental condition.

10. The question propounded by the state to an expert witness, based upon a proper foundation: "What have you to say as to whether the defendant, Leehman, knows moral good from evil, and right from wrong?"-is not objectionable as calling for the opinion of the witness as to the moral insanity of the defendant.

11. Such inquiry is not directed to, nor does it involve the question of, "moral insanity," as defined in those jurisdictions where "moral insanity" is recognized as a defense to crime; and an objection to the question on that ground was properly overruled.

12. The ground of an objection to a question being particularly stated, all other grounds are waived.

13. On appeal a party will not be permitted to change the ground of his objection. (Syllabus by the Court.)

Error to circuit court, Custer county. Charles J. Buell and Chauncey L. Wood, for plaintiff in error. Robert Dollard, Atty. Gen., for the State.

KELLAM, F. J. The plaintiff in error was indicted and tried in the circuit court in and for Custer county for the crime of murder, in shooting and killing one James H. Burns on the 11th day of July, 1889. He pleaded not guilty, and interposed the defense of insanity. He was convicted, and by writ of error brings the record of the trial to this court for review. errors assigned are based upon the rulings of the trial court in admitting and excluding evidence. The first five assignments

The

are general, and allege error in admitting or rejecting any evidence of a designated character, without in any manner speci. fying in whose testimony, or in what part of the record, the alleged error occurs. Such an assignment, if recognized as sufficient, would impose upon this court the duty of carefully examining the entire record in a search for errors of the nature complained of, and this it was the evident design of the statute to provide against. The rule of the Code requiring the errors sought to be reviewed to be specifically pointed out, should be respected by hoth court and counsel. The issue in this case involves a human life, and, as no question is raised by the state as to the sufficiency of the assignment, we feel constrained to relax the rule, so far as it is intended for the relief of the court, and examine the record fully.

The evidence for the state shows that the next day after the killing the defendant took flight, went to Fall River county, S. D.,-about 35 miles distant from the scene of the killing,-hired out as a farm hand, and worked for a period of three weeks. On being discharged he went to Ft. Robinson, Wyo. T.,-about 90 miles distant,-worked making hay for a short time; then went to Chadron, Neb.,about 90 miles from the scene of the killing, -to attend a soldiers' reunion; returned again to Ft. Robinson, and then went to Rushville, Sheridan county, state of Nebraska, where he hired out on a farm, and was there captured about the 1st day of September, 1889, and returned to Custer county. Among other witnesses called by the state was Albert S. Lindsay, who, being first duly sworn, testified as follows: "I reside in Fall River county, South Dakota, and have lived there, on and off, for about five years on a ranch. I first met the defendant, John B. Leehman, in July, 1889. He came to my ranch, and wanted work. Told me his name was George Benjamin Lawrence. I hired him, and he worked for me three weeks and two days, or two weeks and two days,-somewhere near that time." Cross-examination. The witness further testified: "I discharged him. He did not attend to his duties just as I thought he should, and I was a little uneasy about him being there, and I considered that I had better not keep him any longer. Question 6. What was the matter with him? Answer. I took him to be a man of insanity. (The answer is stricken out by the court, to which ruling defendant excepts.) Q. 7. That is the reason you dispensed with him? A. Yes, sir. Q. 8. State how he acted while he was there, his acts and conduct. A. His acts were insanity, I say. I took him the first night he arrived at my place to be insane, and I didn't want him there. (The testimony is ordered stricken out of the record by the court, to which ruling defendant excepts.) A. I think he asked me my opinion of the man's character. By the Court. In stating your testimony, state what the man did. We do not want your opinion. You may give acts and facts and circumstances. That is what you are to relate. The jury wil say what the effect of it was. A. I don't know

what way I could

answer. Q. 9. Was there anything peculiar about his actions? Anything of that kind you may relate, but not your opinion of what he did. By the Court. State what you saw. If you saw anything peculiar, state what you saw. A. He acted very peculiar, and would talk very queer. There were times when he would start a conversation, and jump right off onto another, and it didn't really amount to anything. You could not hardly tell by following his conversation what he was talking about. It would be first one thing and then another. Q. 1. By the Court. He was a little incoherent in conversation, and could not carry on a conversation intelligently? A. That is what I mean. Q. 2. Do you recall another circumstance that you think was peculiar? He wore his clothes like he did when he came there, did he? A. He didn't wear the clothes he did when he came there. Q. 3. He changed his clothes? A. He didn't have scarcely any clothes when he came there. Q. 4. He got other clothes, did he? A. Yes, sir. Q. 5. Was there anything peculiar in that? A. I don't know as there was. Q. 6. The peculiarity you noticed most was his conversation, was it? A. Yes, sir. Q. 7. And that seems about the only peculiarity you noticed? A. Yes, sir.

In his argument the counsel for the plaintiff in error, referring, we suppose, to the testimony of this witness, says the court erred in refusing to allow non-expert witnesses to express their opinion as to whether the defendant was sane or insane, after having related the facts upon which their opinion was based. If the question presented and the ruling of the court were as indicated by counsel's brief, it would probably be held to be error, for it seems to be now well settled in nearly all the states that a non-expert witness will be allowed to express his opinion as to the mental condition of a person after having stated the facts upon which such opinion is based. People v. Conroy, 97 N. Y. 62; State v. Pennyman, 68 Iowa, 216, 26 N. W. Rep. 82; Territory v. Hart, (Mont.) 17 Pac. Rep. 718; Webb v. State, 5 Tex. App. 608; Hardy v. Merrill, 56 N. H. 227; State v. Klinger, 46 Mo. 228. The witness Lindsay had testified that defendant had worked for him two or three weeks, commencing in July, 1889, which would be soon after the alleged homicide; that he discharged him; that he did not attend to his duties as witness thought he should; that he was a little uneasy about having him there, and considered that he had better not keep him any longer. He was then asked. "What was the matter with him?" and answered, "I took him to be a man of insanity." This answer was stricken out by the court, to which defendant excepted. The reason for allowing a non-expert witness to state the impression made upon him by certain facts and conduct is the impossibility of reproducing before the jury the facts and conduct as they were really enacted. If a witness could faithfully and exactly repeat to the jury just what he saw and heard, so that it would appear to them altogether as it did to him, there would be no reason for tak