Douglass v. Branch Bank at Mobile

19 Ala. 659 | Ala. | 1851

DARGAN, C. J.

The first objection to the declaration is. that it does not aver that the defendants entered upon or took possession of the land. The precedents, it is true, all contain -this averment; but I have found no case that holds such an averment indispensably necessary, except in the case of a tenancy at .■will. In actions on leases for years, the declaration is good without the averment that the defendant entered upon or took possession of the land. The reason of this distinction is, that in the latter case, the rent is due by the contract, but in the former it is due by the occupation. In eases of leases for years, the tenant has the right to enter by virtue of his contract, and the law' will presume that he exercised that right, or could have done so at his pleasure. Ho must therefore pay rent, unless he can show that he was prevented from taking possession by some . act or fault of the lessor.—1 Saun. 203, Note 1; Bellasis v. Burbrick, 1 Salk. 208; 2 Chitty, 551, Note.

The next objection is, that the declaration shows a lease from Henry B. Holcombe to tho defendants,,and a covenant on their , part to pay rent to the plaintiff; consequently that tho suit should have been in the name of Holcombe, and not in the name , of the Bank. Tho substance of the allegation is, that the defendants covenanted with the plaintiff in tho name and by the description of Henry B. Holcombe, assistant commissioner of the Branch of the Bank of the State of Alabama at Mobile, whereby the said plaintiff demised, &c., the .defendants agreeing to. pay therefor,to the plaintiff tho sum of four hundred dollars, &c, The judgment was by default, and the question is whether according to this averment the plaintiffs have the legal right to sue for the rent. I admit the rule to be, that when a deed is inter \ partes, a stranger to the deed cannot sn,e upon it, although it Vcontain an express covenant for his benefit. Thus, if A. of the One part and B. of the other., enter into a covenant, and .B. binds himself to do something; for C.’s benefit; C., not being a party to the instrument, cannot sue in his own name on this covenant, lithough he is to bo exclusively benefitted by its performance. Chitty’s PI. 2-3, and cases there cited; 3 Bos. & Pull. 149, Note A. But I cannot believe that wre should, according to this declaration, construe the covenant to bo between Holcombe and i he defendants, with an undertaking on their part to pay rent to the plaintiff; on the contrary, the covenant is alleged to he the act of the plaintiff, in the name of Henry B. Holcombe, assistant commissioner oí the Bank, and the rent is to he paid to the plaintiff. This,, at the most, can be said to be only a misnomer ; ;>f the corporation in,the contract of lease. Can the defendants avail themselves of it to avoid their contract 1 The authorities all agree in this, that slight mistakes in the name of corporations will not avoid their'-deeds or grants. — See the cases of The Mayor' & Burgesses of liynne, 10 Coke, vol. 5,122-25; Angelí oh Corp. 170-71, and cases theré cited. And in the case of The Culpepper Society v. Digges, 6 Rand. 165, it'-was said, that mistakes in the letters or syllables of the name of the corporation shall not vitiate the deed. I:‘am not able to extract any other principle from these cases than this, if it be apparent up- ' on the face of the deed that the corporation was in tended'1 thereby, either to take or to grant,-a mistake in the true name will not vitiate the instrument. Thus, in the case of The President, Managers & Company of the Berks Dauphin Turn. Road v. Myers, 6 S. & R. 12, the instrument produced on -trial contained a covenant with the Berks & Dauphin Turn. Company. C. J. Gibson said, “ I take the law of the present day to be, that a departure from the strict style of the corporation vn.ll not avoid its contracts, if it substantially app'éar that the particular ’ corporation was intended; and a-latent ambiguity may, ■'under : proper averments, • be explained by parol evidence in this, as in other cases, to show the intention.” Again, in the case oFThe New York African Society for Mutual Relief v. Varick, 13 Johns. 38, the count stated, that the defendants by their certain writing obligatory acknowledged themselves held and fii-fflly hound unto the plaintiffs, by the description of The Standing Committee of the New York-African Society for Mutual Relief. To this declaration there was a demurrer, which was overruled,; on the ground that the obligation was to the corporation, though Vy an improper name.- These authorities, P think, establish the principle I have stated, that if it appear fromvthe deed itself that the corporation was intended,--then its misdescription will not avoid it. • According to this declaration, -the lease is under the-1, corporate seal of the Bank, and the money; is to be paid tO' tHe Bank;:but the demise is in the name of Henry B’. Holcombe,-as-sistant commissioner.- We ábS bonhd-td kno#, that by law the assets of this Bank are placed imthe 'hahd&of'bommissioners who are aüthorized to sell or leasdiils real está'th,aad;tVho;l/aVe authoríty td appoint an assistant commissioner to aidin' the-'settlMent'-aiid adjustment of its affairs; and1 taking into consideration?1 these facts, which we must know as matter of law, I think?'it suffidiMtly áppe'ársthat th.c-Bank;Vas'iri;lfeíi>déd--t!)'bct'l!cv.r.c1. bythc Dade.• V, however, will not rest' my judgment solely on1" that ground, for there is another which is more satisfactory. • The demise is alleged to have made been by the plaintiff, in the name of Holcombe,.-* assistant commissioner of the Bank ; the solvendum is alleged to • be to the plaintiff, that is, to the Branch of- the Bank of the State of Alabama at Mobile. Now;" if it were’ admitted that the lease could not bind the plaintiff at law, yet I eiitertain no doubt bufc>,: it could be reformed in equity and the plaintiff decreed specifically to perform the contract. Then the rent ;lbeing- reserved to the - plaintiff by its proper name, there can be no reason why the suit-*should not be sustained in the name of the Bank, .for its-recovery. ~

We have looked into the supposed irregularity in the rendi- •• tion of the judgment;-but we discover none that can- avail the--" plaintiffs in error, -

Lbt the judgment ¡be affirmed.