24 S.E. 124 | N.C. | 1896
The action was brought to rescind a contract to purchase land because of alleged defects in the title of the vendor, and recover the portion of the purchase money already paid.
The tracts of land covered by the contract to convey consist of one 300-acre tract, one 22 1/2-acre tract, one 100-acre tract, one 78 1/3acre tract and one 8-acre tract. There was no dispute as to the 78 1/3acre tract or the 22 1/2-acre tract; the controversy was solely as to title to the 300 acres, the 100 acres and the 8 acres.
In order to show he was able to comply with his contract to convey to the three tracts in dispute, the defendant introduced a (715) grant from the State to one McKlesky, dated 15 March, 1780. This grant was objected to, on the ground that it was registered without being proven before the clerk, or by him ordered to be registered. Objection overruled. Exception. This grant proposes to convey 300 acres of land in Burke County, on the waters of Silver Creek.
The defendant next offered a deed from C. L. S. Corpening, late Clerk and Master in Equity for McDowell County, to Christiana J. and Huldah E. Pearson, dated 19 April, 1871.
The defendant next offered a deed from Christiana J. and Huldah E. Pearson, by their guardian, Rachel W. Pearson, and by Rachel W. Pearson in her own right. Objected to, for want of power in Rachel W. Pearson to convey as guardian, and for want of proper probate and registration. Overruled. Exception by plaintiff.
The certificate of probate and registration is as follows:
"NORTH CAROLINA — Burke County.
"I, J. H. Hallyburton, Clerk of the Superior Court, do hereby certify that B. S. Gaither, the subscribing witness, appeared before me this day, and the due execution of the annexed deed was duly proven by him. Let the same, with this certificate, be registered.
"Witness my hand and seal, this 29 May, 1880.
[Seal of Court.] "J. H. HALLYBURTON, Clerk."
4. The defendant next introduced a deed from L. S. Hapgood to Hancock Gold Mining Company, dated 3 July, 1880. Objected to, on the ground that no power in the Hancock Gold Mining Company (716) to hold lands had been shown, or that there was any Hancock Gold Mining Company. Objection overruled. Exception. *447
5. The defendant next introduced power of attorney by Hancock Gold Mining Company to L. S. Hapgood, its treasurer, to convey their lands, dated 11 July, 1883.
6. Next was introduced a deed from Hancock Gold Mining Company to C. C. Barton, executed by said company, through its agent, L. S. Hapgood, dated 15 June, 1888. Objected to, for the same reason as number 4. Overruled. Exception by plaintiff. This deed purports to be executed by the Hancock Gold Mining Company, under its seal, by L. S. Hapgood, treasurer.
The certificate of probate is as follows:
"COMMONWEALTH OF MASSACHUSETTS — Suffolk — ss.
6 July, 1888.
"Then personally appeared the above-named, L. S. Hapgood, treasurer, and acknowledged the foregoing instrument to be the free act and deed of the Hancock Gold Mining Company before me.
"JOSEPH A. WILLARD,
[Seal.] "Clerk of the Superior Court."
On the left of the signature is the seal of Superior Court affixed.
The following is the certificate of the Superior Court of Burke County:
"NORTH CAROLINA — Burke County.
"The foregoing certificate of Joseph A. Willard, Clerk Superior Court of Suffolk County, Mass., is adjudged to be correct. Let the deed and this certificate be registered.
"17 July, 1888. "S. F. PEARSON, "Clerk Superior Court."
"BURKE COUNTY. (717)
"Filed for registration on 17 July, 1888, and registered in the office of the Register of Deeds for Burke County, N.C. on 17 July, 1888. "J. L. J. ESTES, "Register of Deeds for Burke."
"Clerk will copy power of attorney to L. S. Hapgood, above, and mark `Exhibit F.'"
Next introduced deed from Hancock Gold Mining Company to C. C. Barton, 1 September, 1893. Objected to, for the reason that the Hancock Gold Mining Company had no right to convey land. Overruled, and exception.
8. Next introduced deed from C. C. Barton to L. S. Hapgood, 15 June, 1888. Objected to, for want proper registration and probate. Overruled, and exception. *448
The certificate of probate is in the following words and figures:
"COMMONWEALTH OF MASSACHUSETTS — Suffolk County — ss.
6 July, 1888.
"Then and there personally appeared the above-named Charles C. Barton, and acknowledged the foregoing instrument to be his free act and deed before me. "JOSEPH A. WILLARD, [Seal.] "Clerk Superior Court."
On the left side of the signature is the seal of the Superior Court affixed.
The following is the certificate of the Clerk of the Superior Court of Burke County:
"NORTH CAROLINA — Burke County.
"The foregoing certificate of Joseph A. Willard, Clerk of the Superior Court of Suffolk County, Mass., is adjudged to be correct. Let the deed and certificate be registered.
"S. T. PEARSON, "Clerk Superior Court of Burke."
(718) The certificate of registration is as follows:
"Filed for registration on 17 July, 1888, and registered in the office of the Register of Deeds for Burke County, North Carolina, on 17 July, 1888, in book `P,' pages 56-57.
"J. L. J. ESTES, "Register of Deeds for Burke."
Next was introduced the record of special proceedings in the case of Christiana J. and Hulda E. Pearson, by their guardian, Rachel Pearson, exparte, in which the petition set forth that the petitioner, Rachel, as widow, and the infant petitioners, Christiana and Hulda, as the only heirs at law of Patton Pearson, were the owners of certain lands (described), and that they had been offered $1,400 in cash for the land by L. S. Hapgood, of Boston; that it was to the interest of all parties to sell, etc., and praying the court to order a sale of the lands by a commissioner, after the inquiry and report as to the value of the lands, etc. The record also showed a report by a commissioner as to the value of the lands, and a recommendation that a sale should be made, the facts contained in the report being set out in the decree. The report was filed 19 May, 1880, and confirmed on same day by the clerk. The record of said special proceedings also contained the following decree, signed by Judge Gilmer:
"This case coming on to be heard before John A. Gilmer, one of *449 the judges of the Superior Courts of the State, now holding the several courts of the Eighth Judicial District, at chambers, and being heard upon the petition and exhibits, the former order of the court, the report of the commissioner, G. P. Erwin, and the [report] on file, the court doth find and declare the facts to be:
"1. That the petitioners are tenants in common of the (719) land described in the petition; that the petitioner, Rachel W. Pearson, is entitled to dower in the said lands and has title to two-thirds of the mineral interest therein in fee simple; that the petitioners, Christiana J. Pearson and Hulda E. Pearson, are entitled to all the land and one-third the mineral interest in fee simple, subject to the dower of the said Rachel W. Pearson during her life; that the value of interest of Rachel W. Pearson is equal to the one-half of the present value of the land and all the minerals therein, and that the value of the present interest of the said Christiana J. and Hulda E. Pearson, jointly, is the one-half of the value of the land and all the minerals therein, and that the value of the lands is $800; that the said Christiana J. is nineteen and the said Hulda E. Pearson is seventeen years of age, and are infants; that the petitioner, Rachel W. Pearson, their mother, has been duly appointed their guardian; that the said Rachel W. Pearson, for herself and in behalf of her said wards, has made a contract to sell all the said land at the price of $1,400 in money, in hand paid, has entered into a written contract with Lyman S. Hapgood, of Boston, in the State of Massachusetts, to that effect, and the court finds the fact to be, and so declares, that the interests of the two minor petitioners, C. J. and Hulda E. Pearson (as well as that of the petitioner Rachel W. Pearson), would be materially promoted by a sale of said land at the price of $1,400 and the proceeds of the sale partitioned among the petitioners according to their respective interests, and that part belonging to the said minors paid into this court and placed under control of the court, to be invested or loaned as the court may direct.
"It is therefore ordered, adjudged and decreed that the (720) said Rachel W. Pearson, guardian of the said Christiana J. and Hulda E. Pearson, is authorized and empowered by this court to specifically perform said written contract with said Lyman S. Hapgood upon his paying for said land the sum of $1,400, money in hand, and that she be authorized and empowered to convey all the interest, right, title and claims of her said wards in the said lands in fee simple, with the usual covenants of warranty; and that said conveyance, made in pursuance of this decree, shall pass the title of the said wards in the same manner and to the extent as if made by the said Christiana J. and Hulda E. Pearson, in proper person of full age. *450
"The court doth adjudge that the said purchase money shall be divided into two equal parts; one part thereof shall be the share of Christiana J. and Hulda E. Pearson, jointly, and be paid into this court immediately after the sale of the land; that the same be reinvested, or loaned, to the use and benefit of the said minors, as the judge of this court may specify and order; and it is further ordered that this case be retained for further orders. It is adjudged that the petitioner, Rachel W. Pearson, pay the cost of this proceeding out of her part of the proceeds of such sale, and that George P. Erwin, the commissioner, be allowed $5 for taking the testimony and making his report, 24 May, 1880. JOHN A. GILMER, Judge."
The report of Rachel Pearson follows:
Rachel Pearson, guardian of her two daughters, C. J. and Hulda E. Pearson, has the honor to report to this court that she, as (721) guardian of her said wards, and in her own behalf, has specifically performed the written contract entered into with Lyman S. Hapgood on 29 April, 1880, in behalf of herself and in behalf of her said wards by selling and conveying to the said Lyman S. Hapgood the lands described in the proceedings in this case, under and in pursuance of the former order of this court, having received in payment for said land the sum of $1,400 of money in hand paid, one-half of which is the money due my wards for their interest in said lands; and I do now return and pay into this court, for the use and benefit of my said wards, the sum of $700, agreeable to the order of this court, made in this case this 29 May, 1880. (Signed by Rachel W. Pearson.)
The receipt of clerk follows:
"The within report, on this 31 May, 1880, was returned into court and the sum of $700 paid into court by Rachel W. Pearson, guardian of her wards, C. J. and Hulda E. Pearson, for their use and benefit, to be invested by the order of this court for them, agreeable to the former order made by the judge of this court, and the clerk of this court has given his receipt for the same, this 31 May, 1880.
"J. H. HALLYBURTON, "Clerk Burke Superior Court."
Next was introduced a grant from the State to James Greenlee, James and William Erwin, dated 7 December, 1795.
Next was introduced a deed from George P. Erwin, trustee, to the Hancock Gold Mining Company, covering the 8-acre tract, and *451 it was admitted that G. P. Erwin, as such trustee, had power to convey the title to lands belonging to the heirs of the said Greenlee and the said Erwin within the boundary of this grant. There (722) was evidence that the 8-acre tract was within the boundaries of this grant.
Next was introduced a grant from the State to J. H. Hall, dated 25 November, 1853, covering 100 acres.
Next was introduced a deed from James Terry and wife to L. S. Hapgood, dated 23 July, 1880.
Next was introduced letters of incorporation of the Hancock Gold Mining Company, with certificate by the Secretary of State for Maine, as follows:
"The undersigned, officers of a corporation organized at Portland, in the county of Cumberland and State of Maine, at a meeting of the signers of the articles of agreement therefor, duly called and held at No. 93 Exchange, in said Portland, on Saturday, 19 June, A.D. 1880, hereby certify as follows:
"The name of said corporation is the Hancock Gold Mining Company. The purposes of said corporation are the mining and milling of gold and other minerals, and especially the mining and milling of gold and other minerals in Silver Creek Township, Burke County, and State of North Carolina.
"The amount of capital stock is $300,000 and is paid in full, and the shares thereof are to be forever nonassessable. The par value of a share is $10.
"The names and residences of the owners of said shares are as follows: Lyman S. Hapgood, Boston, Mass., $10,000; John F. Eldridge, Boston, Mass., $10,000; Alpheus P. Blake, Boston, Mass., $10,000.
"Said corporation is located at Portland. The number of (723) directors is three, and their names are Lyman S. Hapgood, John F. Eldridge and Alpheus P. Blake. The undersigned, John F. Eldridge, is president; the undersigned, Lyman S. Hapgood, is treasurer, and the undersigned, John F. Eldridge, Lyman S. Hapgood and Alpheus P. Blake, are a majority of the directors.
"Witness our hands, this 19 June, A.D. 1880.
*452"JOHN F. ELDRIDGE, President and Director. "LYMAN S. HAPGOOD, Treasurer and Director. "ALPHEUS P. BLAKE, Director."
"CUMBERLAND — ss. 19 June, A.D. 1880.
"Then personally appeared John F. Eldridge, Lyman S. Hapgood and Alpheus P. Blake, and made oath that the foregoing statement, by them subscribed, is true.
"Before me: "A. J. BRADSTREET, Justice of the Peace."
"STATE OF MAINE,
"ATTORNEY-GENERAL'S OFFICE, June, A.D. 1880.
"I hereby certify that I have examined the foregoing certificate, and the same is properly drawn and signed, and is conformable to the Constitution and laws of the State.
"HENRY B. CLEAVES, "Attorney-General."
"STATE OF MAINE,
"OFFICE OF SECRETARY OF STATE.
"I hereby certify that the foregoing is a true copy from the records of this office. In testimony whereof I have caused the seal of the State to be hereunto affixed.
(724) "Given under my hand at Augusta, this 6 February, A.D. 1894, and in the one hundred and eighteenth year of the Independence of the United States of America.
"J. J. CHADBOURNE, [Official Seal.] "Secretary of State."
Objected to by the plaintiff, for defective certificate, and there was no power conferred in the certificate upon the alleged corporation to hold and convey the land described in the deeds to and from it. Objection overruled, and exception by the plaintiff.
For the purpose of showing the unequitable conduct of the plaintiff towards her bargainor, the defendant, by her agent, copartner and coplaintiff, the defendant introduced a tripartite contract between the plaintiff, J. C. Landreau, Rev. Father Crowly and Mrs. Barcello (see Exhibit B); also, affidavit of Landreau, showing that he was a party in interest (Exhibit C).
Plaintiff objects. Overruled. Exception.
These exhibits are omitted here because the purport of this evidence is sufficiently stated in the opinion.
Plaintiff introduced no evidence. There was a verdict and judgment for defendant, and plaintiff appealed, and assigned as error as follows: *453
1. Admission of improper testimony.
2. Refusal to give instructions asked for by plaintiff.
3. For error in instructions given.
4. To the judgment.
As these assignments of error are held to be too vague and indefinite, as far as the judgment and instructions are concerned, and the judge's charge and prayers for special (725) instructions are not passed upon by the court, they are omitted. The action was brought to rescind a certain contract, whereby the defendant Hapgood covenanted to convey to the plaintiff, Francis A. Barcello, 550 acres of land in Burke County, known as "Hancock Gold Mine," on account of defect of defendant's title, and for the recovery of $2,000, purchase money, already paid by the plaintiff, and the amount expended in improvements on the land, less the profit realized from working a gold mine thereon. The defendant denied the allegations. The controversy has narrowed down to the question whether the defendant could make a good title to three out of the five tracts of land described in the contract, to-wit, the 300-acre tract, the 100 acre tract and the 8-acre tract.
The title deeds, which gave rise to the exceptions as to form of probate and power of agents to execute, were those offered by the defendant Hapgood to show that he was able to specifically perform his contract. "It is usual," said the Court, In Rowland v. Thompson,
In 1880, when Rachel Pearson, as guardian of her infant children, filed the petition before the clerk of the Superior Court, he was acting in the capacity of probate judge and authorized to take jurisdiction of the special proceeding, under what is now section 1602 of The Code, which, since the enactment in its present shape, in 1885, confers the *454
same authority on him as clerk. But, though he could take cognizance of it, his right to do so was not exclusive, but, under the rule laid down in the cases already cited, concurrent with that of the Superior Court in the exercise of the powers of a court of equity. The Superior Court had general jurisdiction, both of the persons who were parties and the subject-matter of such a proceeding, it being equitable in its nature (Houston v. Houston,
The statute (The Code, sec. 640) confers upon clerks of courts of record in other States the powers both of commissioners of affidavits and of deeds and of commissioners regularly appointed by the courts, and the courts will take judicial notice of their seals. Hinton v. Ins. Co.,
While a foreign corporation is not authorized to exercise powers in another State not granted in its charter (Match Co. v. Powers,
A conveyance of the property of a corporation, like that of an individual, may be executed "through any agent having authority to represent the company for that purpose." 1 Morawitz Pr. Corp., sec. 335. Citing Bason v. Mining Co.,
The testimony of Cooper and the England deed tended to show a collusive combination to avoid the performance of the contract by forestalling the defendant in buying up a title and preventing him from perfecting his own, as he had a right to do. Westall v. Austin,
Affirmed.
Cited: Shields v. Ins. Co.,
(733)