This is an action in ejectment for. a strip of land in lots 31 and 34, block 2, of the city of
Plaintiffs read in evidence deeds as follows: First, a deed from D. C. Dade to the Springfield Hotel Company, dated March 26,1870, conveying to it a strip of land off the west side of said lots 31 and 34, fronting one hundred and twenty feet on said College street, and running back to the south line of said lot 34. Second. A deed of trust executed by the Springfield Hotel Company, dated September 6, 1871, conveying the same property to Charles Sheppard, trustee, to secure the payment of the sum of $18,000 to the cestui que trust named therein. Third. A deed from Sheppard, trustee, under said deed of trust, dated September 9, 1872, conveying the same property to Crenshaw, Keet, Doling, Robertson and Jones. Fourth. Intermediate d.eeds from these parties down to plaintiffs.
Plaintiffs also read in evidence articles of incorporation of the Springfield Hotel Company, dated March 4, 1870, which conformed in every particular to the requirements of sections 1 and 2, of article 8, of chapter 37, Wagner’s Statutes of Missouri,but no certificate from the secretary of state declaring this company a corporation was shown. By these articles of incorporation a board of directors of the company was appointed to manage its concerns.
The evidence tended to show further that a hotel, known as the Metropolitan, was erected on this property, the eastern wall of which was built eighteen and three-fourths inches west from the eastern line thereof.
On April 5, 1870, said Dade conveyed to Jones, Ullman and Robertson, a strip of land in said lots fronting twenty feet on said College street, and running back to the south line of said lot 34, and adjoining the
As to the possession of the .strip of twenty feet, Ullman, being called as a witness by plaintiffs, testified as follows:
By defendants : “ Q. I will ask you if you were not in possession of that same ground that Mr. Massey asked you about more than ten years before the commencement of this suit in March 28, 1887?* A. Oh, yes; I was.
“ Q. If you were in possession of that ground continuously from March 1, 1887 ? A. I was in possession.
“ Q. And claiming it as your own ? A. My own ; yes, sir.”
By plaintiffs : “Q. How were you in possession ? A. I owned the house and lot. I bought it. We bought it from Mr. Dade, and I controlled it for the others, for Mr. Jones, who owned one-third, and Mr. Robertson, who owned one-third, and I controlled it for them, and a sale took place by partition, and I bought it under that sale.
“Q. How many feet did you buy? A. Twenty feet. I bought between the hotel and Mr. Dade’s lot, where Mr. Ford is now.
“ Q. How many feet is there between the hotel and Mr. Dade’s lot? A. I believe there is twenty-one feet.
*262 “ Q. At the time you bought that lot at the partition sale what was there on the lot ? A. There was a signboard across the whole lot.
“Q. Was there anything else on the lot? A. There were some boxes there, and some old wagons, and some salt barrels against the hotel side. There was a house on the back part of the alley, two hundred and thirty-five feet from the front. The bill board reached from the wall of Dade’s building to the hotel wall, and remained there continuously till I began to build in 1882 or 1883.
“ Q. Have you lived here continuously since 1877 ? A. No, I moved to Cleveland, Ohio, in 1881, and lived there six years.
“ Q. How do you know that bill'board was up there all the time? A. I came here once or twice, sometimes two or three times a year, and I saw it there.
“ Q. Are you positive now that that bill board stood there all the time ? A. Yes.”
By defendants: “Q. Did Mr. Dorsey build a platform across there in the spring of 1882 for agricultural implements ? A. Yes.
“Q. Ain’t you mistaken about it remaining there until you commenced to build? Wasn’t it torn down when the platform was put there? A. Yes, sir.”
It is not proven in so many words, but the inference from the evidence is, that defendant Ullman took actual possession of the strip of eighteen and three-fourths inches of land in 1882 or 1883 when he commenced to build on his property. Defendant Ullman also testified that he never heard of plaintiff’s claim to the disputed strip till he built his house. This is substantially the evidence as presented by the plaintiffs, and upon that the court instructed the jury that under the pleadings and evidence the plaintiffs could not recover, and this presents the only question for decision.
In support of the ruling of the trial court defendants urged that plaintiffs failed to show title to the
Per contra, the plaintiffs contend that the corporate existence of the hotel company and the deeds to and from it cannot be called in question in this collateral proceeding; that as both parties claim title to the land from Dade, a common source, they were not required to show title in him, and the evidence does not show that defendants had acquired the title by adverse possession.
I. Section 1 of article 8, chapter 37, Wagner’s Statutes of Missouri, authorized the incorporation of a hotel company, and the company in question having been formed de facto and having assumed to act, and. having acted as a corporation de facto, its corporate existence cannot be called in question or tested in a collateral proceeding like this. 2 Morawetz on Priv. Cor., secs. 776-7-8 ; G. M. & S. Co. v. Richards, 95 Mo. 106. And it is well settled that a transfer of property to or by a corporation de facto will be held binding and valid as against all parties except the state. 2 Morawetz on Priv. Cor., sec. 753; Thompson v. Candor, 60 Ill. 244; Hudson v. Corporation, 113 Ill. 618; Wait on Ins. Cor., sec. 22.
II. The contention of defendants that plaintiffs were required to show title in Dade in order to recover in this case is not tenable. Defendant Ullman testified that he claimed title to the property by and through Dade. It is true, the fact that he claimed through Dade was shown by parol, but in the first place there was no objection to this mode of proof, and, in the second place, if there had been, it ought to have been overruled; for it was expressly ruled in the case of Smith v. Lindsey, 89 Mo. 76, that a common source of title may be shown by parol. It being shown that both
Ill, This brings us to the question of the statute of limitations. This is evidently a contest between coterminous proprietors as to the boundary line between them. Plaintiffs’ evidence tended to show that the conveyance by Dade to the hotel company in March, 1870, covered the disputed strip of land, and that while defendant Ullman did not pretend he had bought more than twenty-feet frontage on College street, he had at the time of trial possession of, and claimed title to, at least twenty-one feet. The evidence is indefinite in regard to his possession of the disputed strip. We take it, however, that there was evidence that prior to 1882, there were bill boards on defendants’ land extending to the hotel building. Whether these bill boards were there ten years prior to the institution of this action does not clearly appear. In 1882, Dorsey, by permission of defendants, built a platform for agricultural implements. This “platform extended up against the hotel building.” When this was put up the bill boards were taken down. In 1882 or 1883, defendant Ullman built a house on his property and then unquestionably took actual possession of the disputed strip of land. If the trial court sustained the demurrer to the evidence because it was proved that defendants had acquired title to the property in controversy by adverse possession, it committed error.
We deem the evidence of defendants’ possession of the disputed strip very weak, indeed, and beyond any controversy it was not so cogent that the court could, as a matter of law, declare to the jury, defendants had acquired the title by adverse possession, for if the demurrer to the evidence was sustained on this ground, that is what the court had to do. And, again, there was no evidence that defendants intended to claim, or did claim, beyond their true line. “The possession of coterminous proprietors under a mistake or ignorance of
The judgment is reversed and the cause remanded.