32 W. Va. 357 | W. Va. | 1889
On December 7, 1886, the Spring Garden Bank, a Pennsylvania corporation, sued out of the clerk’s office of the Circuit Court of Tucker county an attachment against the estate of Marcus Rulings, a non-resident of this State, and caused the same to be levied upon a number of tracts of land lying in the counties of Tucker and Randolph in this State. At the January rules, 1887, the said Spring Garden Bank suing on behalf of itself and other attachment-creditors exhibited its hill in said Circuit Court against the said Marcus Hulings, The Hulings Lumber Company, F. W. Mitchell and others to set aside a deed dated January 2, 1885, made by said Marcus Hulings to the said The Hulings Lumber Company purporting to convey to it the lands attached as aforesaid, and to subject said lands to the payment of certain debts due to the plaintiff and others from said Marcus Hul-ings. The bill assails said deed upon two grounds: first, that
The facts disclosed by the record appear to be as follows : During the years 1882, 1883 and 1884 Marcus Iiulings purchased certain timber-lands and took options to purchase other lands in the counties of Tucker and Randolph along or near the Cheat river and its tributaries. On some of said lands he paid a part of the purchase-money, the whole amount paid by him not exceeding $10,000.00 and obtained deeds therefor giving his notes for the balance amounting in the aggregate'to about $50,000.00, which were secured by vendors’ liens retained in the deeds. On other portions of the lands he paid nothing, and for others still he had no deeds. By a written agreement dated April 30, 1884, the said Marcus Hulings, his son, Willis J. Hulings, and John E. Butler entered into copartnership under the name of Hulings & Co. for the purpose of dealing in petroleum, manufacturing lumber and buying, selling, holding and dealing in lands and buildings and operating saw-mills etc., and carrying on agen-eral lumber-business. The said Marcus Hulings for the consideration stated in said agreement sold to his son and said Butler a two thirds interest in all of said lands and options, thus making the said Marcus Hulings, Willis J. Hul-ings and the said Butler, each the owner of one third of said lands, subject to the vendors’ liens existing thereon; and on the same day the said Marcus Hulings by. a contract in writing bound himself to convey all of said lands subject to the said vendors’ liens to a trustee, to be appointed by the said
Before the conveyance of said lands or tbe selection of a trustee, to whom they could be conveyed, the said firm of Hulings & Co. decided to become an incorporated body, and that said conveyance should be made to said corporation instead of to a trustee. Accordingly, on January 2, 1885, the parties duly executed an agreement to become a corporation of the state of West Virginia by the name of “The Ilulings Lumber Co.,” and on the same day but subsequent to the execution and filing of said agreement the said Ilulings & Co. by a writing duly signed by said firm, agreed that they would “cause to be conveyed unto said corporation” all the aforesaid lands, to which Marcus ITulings held the title, and also the mills and other property; that had been acquired by said firm in the lumber-business subsequent to the date of the aforesaid agreement of April 30, 1884. In pursuance of this writing or contract of January 2,1885, a deed was written, signed, sealed and acknowledged by Marcus ITulings and wife conveying to The ITulings Lumber Company all of said lands, subject to the vendors’ liens still existing upon them for unpaid purchase-money amounting to over $30,000.00. This deed was placed in the hands of John E. Butler with the understanding, that he was to deliver it to The ITulings Lumber Company, as soon as it should be organized and issue stock in payment for said lands to the corporators. On February 20, 1885, a certify cate of incorporation was issued by the secretary of state of West Virginia for said corporation, and on March 28, 1885, the stockholders met and duly organized and elected a board of directors, and on the same day the board of directors met and elected the following officers: Willis J, Ilulings, presi
On October 27, 1886, the plaintiff, The Spring Garden Bank, recovered in the Supreme Court of the state of New York, in and for the city of New York, a judgment against Marcus Hulings for $3,374.00 with costs and damages ; making an aggregate sum of $3,622.07. Upon this judgment this suit is founded. The note upon which said judgment was recovered was given by Hulings on September 29, 1884, but according to the testimony of Marcus Hulings, which is not contradicted, the'said note was not negotiated so as to make it a liability upon him until about the middle of June, 1885, more than two months after the date of the deed to The Hulings Lumber Company.
The first question presented is : Is the deed to the Hulings Lumber Company void, because at the date of said deed, the said company had not been incorporated ? This inquiry involves the essentials of a valid conveyance of real estate. The law requires more form and solemnity in the conveyance of land than in that of chattels. It is only necessary here to consider conveyance by deed. A deed is a writing sealed and delivered ; and to be duly executed it must be written on paper or parchment. Co. Litt. 35b. There must of course be both a grantor and grantee to every deed. In order to be
The foregoing are elementary principles. The important question howTever in this cause is : Is the deed from Marcus Hulings and wife to The ITulings Lumber Company void and ineffectual for the want of a grantee? It is admitted that a grant in prcesenti to a person not in esse, at the time the deed is delivered, would be inoperative; and likewise a deed to a corporation never created or organized would be void. Hulick v. Scovil, 4 Gilman, 191; Harriman v. Southam, 16 Ind. 190; Russell v. Topping, 5 Macl. 202. These cases and others of the same character fully sustain the doctrine, that a deed to a corporation not in existence or to one incapable by its charter of holding real estate or to a person not in esse at the time of the delivery of the deed is void; but I have
In the case before us the corporators of The Ilulings Lumber Company on January 2, 1885, before the deed to it was executed, had duly signed and entered into articles in the form prescribed by the statute, by which they agreed to be
This conclusion renders it unnecessary to consider at any length the other ground, upon Avhich said deed is assailed by the plaintiff’s bill. It appears from the testimony of Marcus Hillings, and there is no evidence in the record contradicting him, that the notes, on Avhich the plaintiff' obtained its judgment, Avero ivholly Avithout consideration and never became legal and binding obligations upon him, until they passed into the bauds of bona fide holders, and that no part of them did so pass into the hands of the plaintiff' or any person, under Avhom it claims, until about the middle of June, 1885, Avhich Avas more than two months after the title to said lands had vested in said company. If therefore it were conceded, that said deed AA'as wholly voluntary and AAÚthout any valuable consideration, in the absence of any proof of actual
For the reasons aforesaid I am of opinion, that the decrees of the Circuit Court should be reversed, and the plaintiff’s bill dismissed.
Reversed. Dismissed.