manner hereinbefore prescribed, may be recorded in the office of the register of deeds of the county in which such real estate is situated." Section 387a of the Code (Comp. Laws 1879) provides that the books and records required by law to be kept by any register of deeds may be received in evidence in any court, and when any such record is of a paper or instrument authorized to be recorded, and the original thereof is not in the possession or under the control of the party desiring to use the same, such record shall have the same effect as the original. Section 12, c. 87, Sess. Laws 1870.

The question, therefore, arises whether the certificate of acknowledgment of the notary public was sufficient, under the statute, without attaching his notarial seal thereto. We think not. deed was not properly authenticated, it was not entitled to be recorded. As it was not entitled to be recorded, the record thereof was not competent evidence. The lost deed purported to have been executed September 22, 1877, but it was not filed for record until May 21, 1883; therefore section 28, c. 22, Comp. Laws 1879, does not apply, because that statue took effect October 31, 1868. Neither has section 27 of said chapter 22 any application; and the decision of Williams v. Hill, 16 Kan. 23, to which we are referred, has reference only to copies of deeds which have been properly recorded. Since the decision in Simpson v. Mundee, 3 Kan. 172, the statute regulating the conveyances of real estate has been materially changed. Section 13, c. 41, Comp. Laws 1862; section 19, c. 22, Comp. Laws 1879; Wickersham v. Chicago Zinc Co., 18 Kan. 481; Wilkins v. Moore, 20 Kan. 538. After the rejection of the record. from the office of the register of deeds, the plaintiffs offered, and were allowed to prove, the contents of the lost deed. In this way the court became possessed of all its terms and conditions, and therefore we do not perceive that the ruling of the court rejecting the record of the deed was very material in the case.

The only remaining question is that of costs. These the court divided. In such cases as this costs follow the judgment, and plaintiffs were entitled to recover all their costs. The ruling of the trial court in this respect was erroneous. Section 589 of the Code reads:

"Where it is not otherwise provided by this and other statutes, costs shall be allowed, of course, to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific real or personal property." City of Emporia v. Whittlesey, 20 Kan. 17; Smith v. Woodleaf, 21 Kan. 717.

If the defendant had disclaimed as to all of the land in controversy, excepting the 24 acres adjudged to belong to him, of course he would have been entitled to recover costs. Section 590, Code.

The judgment below will be affirmed, excepting that the costs must be retaxed in accordance with the views herein expressed. (All the justices concurring.)

(13 Or. 214)

SUPREME COURT OF Oregon.

MAYS, Assignee, etc., v. FOSTER and others.

Filed February 8, 1886.

CORPORATION-TRANSFER OF STOCK BY STOCKHOLDER-CONSTRUCTION OF SICH TRANSFER.

The transfer by a stockholder to an individual of the former's stock is not to be construed as a transfer for the benefit of the company, unless there are particular circumstances to stamp it as such.

F. P. Mays, for respondent.

R. Williams and J. K. Kelly, for appellants.

LORD, J. The complaint filed by the plaintiff alleges, in substance, the incorporation of the Rockville, etc., Trading Company; the copartnership of the defendants; the assignment by said corporation, on January, 1881, of all its property, including the claim sued on, to the plaintiff; the delivery by said corporation to the defendants of 21,127 pounds of wool to be sold on commission; the sale of said wool for $4.615.46, prior to December 15, 1880, by defendants; that the commissions, etc., all proper charges of defendants against said wool, were $3,285.50; that the balance, $1,329.96, had never been paid; and that said corporation had demanded said balance, but defendants refused and still refuse to pay the same. The answer of the defendants admits the incorporation of plaintiff's assignor, and the copartnership of defendants, but denies the assignment of said corporation to the plaintiff; denies that said corporation delivered to the defendants 21,127 pounds of wool, or any other or greater amount than 13,531 pounds; and alleges that they received 7,596 pounds of wool, being the balance from one T. S. Lang; sets up certain charges against the wool; and denies any indebtedness to the plaintiff. And as a separate defense, it is alleged that after the wool was received said Lang, who was indebted to the defendant John R. Foster in the sum of $1,271.93, agreed with the defendants that they might retain from the proceeds of said wool the amount of his indebtedness to said Foster, and that this agreement was known to the corporation; and further alleges that prior to the sale of said wool, and while it was in the defendants' possession, said Lang and his wife transferred their stock in said corporation to said corporation, in consideration of which said corporation agreed with said Lang to pay to the defendants out of the proceeds of said wool the amount of Lang's debt to the defendant Foster; that after the sale the defendants did pay to the defendant Foster, with the consent of said corporation, the said sum of $1,271.93, and only accounted to said corporation for the balance of the proceeds of said wool. The reply denied the new matter and the agreement set up in the answer. After the plaintiff had introv.10p.no.1-2

duced some testimony, the following stipulation was made by the respective parties, in open court:

"That the wool alleged to have been shipped and delivered (part to John R. Foster and part to Foster & Robertson) was received by them, and that Foster & Robertson accounted for all the wool; but in doing so, and in rendering account of sales, they included therein as a charge against said company the note of T. S. Lang in favor of John Foster for $1,271.93, which the defendants claim they had the right to do under an agreement with the company, but the plaintiff denies that any such agreement was made with the company."

By the terms of this stipulation there was left for trial but one question: Whether the defendants had the right to deduct from the proceeds of sales in their hands the amount of the note given by Lang to Foster. The jury found for the plaintiff.

The grounds of error alleged are in respect to certain instructions given at the request of the plaintiff, and in refusing to give certain others asked by the defendants. As all these instructions were based upon the supposed effect of certain evidence, it is necessary to give the substance of it to understand the point, or at least the main point, of contention. The stockholders of the corporation were T. S. Lang, Mary Lang, his wife, James A. Varney, John R. Poor, and Charles E. Poor. The capital stock was $25,000, divided into 250 shares of $100 each. Of these T. S. Lang had 1 share; his wife, 49 shares; Varney, 50 shares; and John R. Poor and his son Charles, 150 shares. All the stockholders were directors of the company at that time, and Lang was president of the board of directors and Varney the secretary. It appears by the record that some time in November, 1880, John R. Poor met T. S. Lang in the Dalles, and had a conversation with him at the Umatilla House about selling their stock in the corporation; and after a good deal of negotiation arrived at an understanding, subject to the approval of the other parties concerned, whereby the stock of the Langs, and it would seem also of Varney, was to be transferred to Sarah E. Poor, and in consideration thereof Poor was to procure the release of Lang from all his indebtedness to the company, and also to pay Foster the debt above referred to out of the proceeds of the wool in the hands of Foster & Robertson, the defendants. In pursuance of this understanding the parties all met at the house of Mr. Lang. All the directors of the company were present, but not holding a meeting as such, and the matter of the Langs selling out their stock was talked over; and the interview resulted in all present giving their consent to the agreement between Lang and Poor, which a day or two afterwards was carried into effect by an assignment of the stock to Sarah E. Poor. It is not claimed that the corporation acted in its corporate capacity in respect to this matter, nor that it received the stock, or any benefit resulting from it, nless John R. Poor be considered the corporation from the fact of owning the controlling interest in the corporation.

The plaintiff contended that the transaction was purely an individ

ual matter between the parties, and in no way involving a corporate act, and in which the corporation was in no way concerned; and that its character as an individual transaction was not affected by the fact that some or all of the parties concerned were stockholders or directors of the corporation; nor by the further fact that the transaction on one side was to secure the transfer of stock by one individual to another individual. Upon this theory of the transaction, as it is disclosed by the evidence, the plaintiff based his instructions, which were given by the court and excepted to, and which, in our judgment, apply the correct principles of the law to the case, and require no further consideration, unless the instruction asked for by the defendants and refused by the court was error. This instruction sufficiently specifies the contention of the defendants, and is as follows:

"It T. F. Lang and his wife transferred the stock held by them in the Rockville Wool Stock-raising & Trading Company to Sarah E. Poor, and said company, at a meeting of its board of directors, by resolution accepted such transfer for the benelit of said company, then they are chargeable with a knowledge of the contract under which said transfer was made, and the corporation could not keep the stock so received and refuse to perform the contract by which it procured the transfer to be made."

Now, if T. S. Lang and his wife had transferred the stock held by them to the company, that might raise the question whether the company was authorized to assume the liability; and if they were, which may be conceded, the ratification would be good. More, if Lang and his wife transferred to Sarah E. Poor for the benefit of the company, and the company accepted such transfer, then it may be said that the company is chargeable with a knowledge of the contract, etc. But there is no resolution of the company to this effect. The only resolution in the record having reference to this matter recites. the fact that Lang and his wife sold their stock in the company to Sarah E. Poor, and the further fact that "having no means to pay the debt against T. S. Lang," etc., it is "hereby canceled." But there is nothing in this which suggests that Sarah E. Poor took the transfer "for the benefit of the company," or any evidence that the corporation "accepted" a transfer of stock which had been made, not to it, but to Sarah E. Poor, who thereby became a stockholder. Nor is there anything to show that the company claimed, professed to own, or kept the stock. The facts show the stock did not belong to it, and there is nothing in the record inconsistent with this. Unless there are particular circumstances to stamp it as such, the fact that a stockholder in a company transfers his stock to an individual, cannot be construed as a transfer for the benefit of the company. It is simply an individual act between the parties. The company derives no benefit from it. It is a private transaction, and, whatever knowledge the company may have respecting it, it neither creates nor discharges any liability. We are unable to discover any error except the assignment in relation to the amount of the judgment and rate

of interest, which it is admitted was a mistake, and of which the defendants were notified by the plaintiff; and for the amount thus modified the judgment is affirmed.

CoпN and others v. OTTENHEIMER and another.

Filed February 25, 1886.

1. PLEADING-COMPLAINT-DEFECT OF PARTIES-DEmurrer.

When it is shown upon the face of the complaint that the presence of other parties not brought in is necessary to a complete determination of the controversy, a demurrer will lie for a defect of parties plaintiff or defendant, but not when there are already too many brought in.

2. SAME-FILING OF DEMURRER-PROPER COURSE THEREUPON.

After a demurrer is filed the only proper course for the opposing party is to bring it on for hearing. A motion to strike out parts of it is not to be entertained.

3. SAME-IMPROPERLY UNITING CAUSES OF ACTION-Demurrer NEXT PROCEEDING BY PLAINTIFF.

A demurrer to a complaint for an improper uniting of causes of action goes to the complaint as a whole, and the only course of plaintiff thereupon is to file an amended complaint, leaving out the objectionable causes of action. 4. SAME-CODE-USE OF TERMS.

In pleading under the Code the terms employed in the Code should be used, and not terms, now obsolete, obtained from the old common-law system. Wm. M. Ramsey and G. J. Bingham, for appellants. X. N. Steeves, for respondents.

THAYER, J. The respondents commenced a suit in the court below to foreclose a mortgage executed to them by Charles and Sarah F. Littlefield upon certain lots of land in Baker City, in the county of Baker. The mortgage bears date May 19, 1883, and was given to secure the payment of a promissory note executed by the mortgagors to the mortgagees for the sum of $1,625, bearing even date with the mortgage, and payable 12 months thereafter, with 10 per cent. interest. Said Charles Littlefield and Sarah F. Littlefield are husband and wife, and were such when said note and mortgage were executed, and had been for a long time prior thereto. They were made defendants in the suit, and the appellants, Ottenheimer & Heilner, who are partners in business, were joined with them as defendants. The respondents set out in their complaint, after alleging a cause of suit against the makers of the note and mortgage, and that said Ottenheimer & Heilner claimed some interest in the mortgaged premises as judgment creditors subsequent and subject to the respondents' mortgage, the following: "And the plaintiffs herein, in order to protect and hold their security upon said mortgaged property, and that the plaintiffs may realize the full amount of their debt out of said property, the plaintiffs demand the relief hereinafter specified, which application is based upon the following facts;" and then proceeded to show upon what Ottenheimer & Heilner based their claim, viz.: That on the fifth day of January, 1880, the Littlefields conveyed by deed the said lots to one Shaw, and that on the sixth day of January, 1880, Shaw and