Littelle v. Creek Lumber Co.

54 So. 841 | Miss. | 1911

Whitfield, C.

The question upon which the decision of this case pivots is whether a deed to land, made by a private corporation without affixing its corporate seal thereto, is valid in an action of ejectment at law. It was undoubtedly the rule at common law that a private corporation could not convey its real estate, except under its corporate seal. In Perry v. Price, 1 Mo. 664, 14 Am. Dec. 316, the court said: “Those things do not exist in this case, nor does the approbation of seven directors afterwards, ratifying, the execution of the writing, as they call it, make the matter any better. They only ratify the execution of the writing. This ratification does not make the instrument a deed, unless it were a deed before. It does not make a smooth plaster of wax a sealed impression. These things, we know, are technicalities; but it is to be remembered that a corporation only exists by technical fiction, and all it does must be technical, and, in general, can only be known by using signs, which the law has given it power to use, to evince its existence or consent. We do not think there is any analogy between the cases of sealing by individuals and corporations. In the case of a natural person, there is but one will to be proved; but in the case of aggregate corporations there are many natural wills, and they must be conjoined before any corporate will is produced; and this conjunction is to be proven by proof of the common or special sign of con-, sent having been' given. In the case of a natural person, the fact that any seal was used by him is proof that his whole will concurred in assent to the act done. Therefore the analogy fails. ’ ’

Section 901 of the Code of 1906 provides that every corporation created under the chapter on “Corporations” may have a “corporate seal” and may “sell and convey real estate.” Section 2766 of the Code of 1906, in the chapter on “Land and Conveyances,” provides that “corporations may convey their lands by and under corporate seal and the signature of an officer,” etc. Section 4631 of the Code of 1906, which first appeared as section 993 of the Code of 1880, provides: “The use of private seals is dispensed with, except as to corporations; and- all distinction between sealed and unsealed instruments, made by private persons, either as to the rights conferred by them or the remedies on them, is abolished.”

In the case of Gibbs v. McGuire, 70 Miss. 646, 12 South. 829, a deed was made to land in this state by an individual living in Texas, on the 20th day of January, 1880, nine months before the Code of 1880, by • which seals were abolished as to individuals, became operative. At that time the law of Texas did not require a seal to such a deed, and the court held that the deed was- void, and unavailable in an action of ejectment, because the law at that time had not been changed by section 993 of the Code of 1880. The court said: “While the power of the legislature to have so legislated as to give effect to unsealed conveyances according to the intention of the parties is admitted, we find no evidence of any such purpose in the law. It' does not .declare a rule for' the past, but for-the-future; and, having abolished the use of seals, it at the same time abolished those distinctions which had previously existed in reference to remedies which rested upon the existence of seals. But there is nothing to indicate that a different effect was to be given to an instrument previously executed than it had at the time of its execution. The one introduced by the plaintiff was confessedly insufficient to convey the legal title to the land when it was made. Alexander v. Polk, 39 Miss. 737. And the plaintiff, suing in ejectment at law, must recover upon a legal title. Thompson v. Wheatley, 5 Smedes & M. 499; Wolfe v. Dowell, 13 Smedes & M. 103, 51 Am. Dec. 147; Torrance v. Betsy, 30 Miss. 129; Heard v. Baird, 40 Miss. 793; Lockhart v. Camfield, 48 Miss. 470.”

This case is conclusive here, since this also is an action of ejectment, and, so far as private corporations are concerned, section 993 of the Code of 1880 and section 4631 of the Code of 1906 expressly except corporations. There is no escape, therefore, from the conclusion that a deed of a private corporation, made at this time in this state, to land, cannot be availed of in an action of ejectment, where the plaintiff must have the legal title, if that deed be not under seal. Such is the effect of our statutory law in this regard. So far as the case of McIver v. Abernathy, 66 Miss. 79, 5 South. 519, is concerned, it is only necessary to say that that was a suit in .equity, and the case has no application here.

The case of Morgan v. Blewitt, 72 Miss. 909, 17 South. 602, settles this proposition squarely. The court there said: “In ejectment, in a court of law, only the legal title is involved, and equitable defenses are inadmissible. There may be cases where it would be very convenient and advantageous, and would seem to be proper, to permit an equitable defense in a court of law in resistance of an action to recover land; but the difficulty of drawing the line between cases where such defense may or may not be allowed suggests the wisdom of denying it in all cases and leaving parties to the appropriate forum of the assertion of equitable rights; and so long as the state maintains two sets of courts to administer justice, where one would do it better, and without questions as between law and equity, it is the duty of the court to maintain the distinction between legal and equitable rights and remedies, and that each shall avoid any invasion of the province of the other. This will prevent confusion, and preserve the constitutional scheme of two sets of courts. However desirable it may be to have one court, about which there can be no mistake or dispute, to administer whatever justice the jurisprudence of the commonwealth affords in each case, without dismissing a party to seek some other tribunal, the courts are unable to accomplish this, and must uphold existing arrangements, and each court must continue to administer the principles applicable to it, and not lengthen its arm to seize what belongs to the other. Bach court must complacently recognize its impotence to give relief in many cases, and dismiss a party to seek it elsewhere in the state’s temple of justice, but in another apartment.”

Affirmed.

Per Curiam.

The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the judgment is affirmed.