12 Mich. 138 | Mich. | 1863
All the questions in this case arise upon the demurrer to the declaration. Several causes of demurrer are assigned; and as the judgment of the Court below, sustaining the demurrer, was general, and it does not appear upon what particular ground the declaration was held insufficient, it will be necessary to notice all the special causes of demurrer assigned, unless the objections which relate to the form of the declaration rather than to the right of action, shall be found to be well taken. If any of these are sustained, no question can properly* arise upon those which relate to the canse of action itself, and which would be the same under any form of declaration. We shall therefore first notice those which relate to the form of the declaration, and the manner in which the cause of action is set forth.
The first objection is, in substance, that there is no allegation that the persons purporting to sign the contract for the defendant corporation, were their duly constituted agents for the purpose, or in ,anv manner authorized to do so by ány competent action of the defendants.
Upon this point the declaration alleges that the “ defendant entered into the contract.” The contract is made a part of the declaration, and set forth at large in its words and figures, and it is declared upon its face to be a contract “between the corporation known as ‘The Regents of the University of Michigan,’ of the first part, and the corporation known as ‘The Detroit Young Men’s Society, of the second part;” and the contract in all its stipulations, is, in form, that of the respective corporations. The attestation clause is in the following form: “ In witness whereof the party of the first part, by the undersigned, Regents of the University, present at a meeting of the Board of said Regents, held in the city of Detroit, on the day first above written, and the party of the second part, by
The next objection is, that the instrument set forth does not conform to the allegations of the declaration, inasmuch ■as it does not purport to have been executed by the plaintiffs, or defendants, or any person for them, nor that the same was sealed by the respective corporations or either of them. It needs but a glance at the attestation clause, and the signatures, to show that so much of the above objection as claims that the instrument set forth does not purport to be executed by the plaintiffs or defend
The declaration, before setting out the instrument in its words and figures, does allege that “ the said plaintiffs and defendant entered into their certain contract or obligation in writing, which said contract in writing the said plaintiffs now bring here into court, sealed by the several parties and their agents executing the same, and which contract in writing, with the certificate of acknowledgment thereon, is in the words and figures following,’5 [setting it forth].
The attestation clause of the instrument (above cited), might indicate an intention of attaching the seals of the parties — the respective corporations — though it is not in the usual form of the attestation clause where corporate seals are to be affixed. But the actual execution is, on the part of the Regents, by signing their individual names as Regents, and by affixing their separate seal (or scroll) at the end of each respective name; and the committee for the defendant corporation sign their individual names as a committee, with a similar seal at the end of each of their names.
We do not think these seals can be treated as the seals of the respective corporations or either of them. They are but the individual seals of the several persons signing the instrument; and as the contract does not purport to be that of the individuals thus executing, but of the respective corporations, these individual seals are merely nugatory, and can not alter the legal effect of the instrument. It must therefore be treated as an unsealed instrument, or simple contract in writing; and, as such, we think the respective corporations are bound by it, if it is in other respects valid in law: — Angell & A. on Corp. §§ 295 and
Had the declaration only attempted to set forth the contract according to its legal effect, without setting forth the whole instrument so as to enable the Court to determine its legal effect, doubtless there must have been a variance in proof, as it would not have supported the allegation in respect to the seals. But when the instrument is set forth in full, the Court are to say what is its legal effect; and any allegation in respect to the description or effect of the instrument, in a matter which must appear upon its face as set forth, is, we think, entirely superfluous, and may and should be rejected as surplusage. And if the instrument, as set forth, should correspond with that offered in evidence, no court could, we think, so far dis. regard the dictates of common sense as to reject it because it did not correspond with such superfluous allegation.
The legal effect of the contract, as it relates to the present action of assumpsit, so far at least as any question can arise upon demurrer, would be the same whether under seal or not; since the statute, Comp. L. § 4550, allows actions of assumpsit to be brought upon contracts under seal “in the same manner, in all respects, as upon contracts without seal.”
It is further objected that there is no sufficient proferí of the instrument. Being but a simple contract, no proferí was necessary. But had it been a sealed instrument, not only is the proper proferí made, but oyer j is granted and the copy furnished in advance; and any further proferí, or oyer (the furnishing of another copy) would be but an idle ceremony.
But it is further urged, as a cause of demurrer, that there is no sufficient allegation of the breach of the contract, nor of demand of payment. The interest being due at a fixed time, and without any condition, and alleged to be unpaid, no special demand was necessary: a request
The. declaration is therefore sufficient in every thing relating to the plaintiffs’ cause of action and the defendant’s liability, if the instrument declared upon be a valid contract.
But the first, sixth and seventh causes of demurrer relate to the validity of the contract; and it is insisted that neither the plaintiffs nor the defendant had power to enter into the contract without special legislative authority, and that none is shown.
We will first consider the power of the defendant. By the act of incorporation — Laws of 1836, p. 166 — the corporation is authorized to acquire, by gift, devise, purchase or otherwise, and to hold and convey, any real, personal or mixed estate whatsoever, necessary and proper for the objects of this incorporation; Provided the same shall not exceed the sum'of twenty-five thousand dollars (which is extended to $200,000 by the act of 1859, Laws of 1859, p. 270). But, by section four, the real estate which the corporation is allowed to purchase is to be “only such as shall be required for its accommodation in relation to the convenient transaction of its business.’’ The object of the incorporation is declared to be “for the purpose of moral and intellectual improvement;” and express power is given to establish and superintend a library. We think, it quite clear, therefore, the corporation has the power to acquire, by purchase or otherwise, and to hold real estate for the erection of such buildings as they may see fit, and as their convenience may require, for a library, for lecture rooms and places of meeting. And the power to purchase must include, as a means to an end, the power to enter into a contract for such purchase upon such terms as may be agreed [upon. It is not denied that such would be the result, if it appeared upon
It is true the contract gives the defendant no right of possession until full payment and conveyance. But, on the other hand, 'as it. was not bound to wait the one hundred years to make payment, but was at liberty to pay and call for a deed the next day after the execution of the contract, we can not say, without any allegation or proof to that effect, that the object of the purchase was not for the legitimate use of the society. The contract is just as consistent with that purpose as any otherj; and we are therefore bound to infer — until the contrary is alleged or proved — that such was the object of the purchase.
The only remaining question, is, that of the power of the Regents to sell this property. ' This question might depend upon the mode and purposes of the acquisition, the objects and terms expressed in the instrument by which the title was acquired. And as the Regents have been held to be the successors of the trustees of the University under its old organization — who had an express power of sale vested in them — and the powers and functions of the present organization are different in many other respects, the question might perhaps be afíected by the fact when and by which organization the property was acquired. But so far as the question of the power of the Regents to sell may depend upon any of these considerations, it can
The abstract question, therefore, of the legal possibility of such ownership by the plaintiffs, is the only question upon this branch of the cause which can be decided upon this demurrer. Upon this question I think there can be little room for doubt. This being an action at law, any conveyance, by grant or devise, vesting in them the whole legal title, though it were upon special trusts, would satisfy the allegation of ownership contained in the declaration, if it conferred the power of sale, as well as if no trust had been declared. The power of taking and holding real estate — as well as personal property — is generally laid down as one of the powers incident to every corporation, unless there be an express prohibition, or such power be clearly repugnant to the purposes of its creation,] or forbidden by some positive law: — A. & A. on Corp. §§ 110, 111; 2 Kent, 224. And the power to convey, except
Many other cases might be put in which their power of sale would be equally clear. But it is unnecessary to multiply -instances, since a title like that above supposed would be admissible under the allegation of ownership contained in this declaration.
But it is said we can not presume a trust, as none is mentioned in the contract. It is sufficient to say that, if such trust existed, it was unnecessary to mention it in the _ contract, or in the declaration. It would be sufficient if the title, when produced in evidence, disclosed a trust which would sustain the power of sale. There is no occasion for any presumption. It is not a question for presumption, but what evidence would be admissible under the allegation; and we are certainly not at liberty to-indulge any presumption against' the truth of the allegation of ownership, which is broad enough to include such title in trust. What right, on the other hand, have the Court to presume that this is a part of the land conveyed to the State for the use of the University ? Or that, though conveyed to the Regents, the conveyance was such as to deprive them of the power of sale, when it may have been so granted as to give them that power? Can we deny them the right to prove their allegation? It is not for the Court, upon demurrer, ■ more than for the opposite party, to deny the truth of the allegation demurred to. The question is not upon its truth, but its sufficiency. Its truth is admitted by the demurrer, unless legally impossible.
It was stated on the argument that the lot mentioned in the contract was conveyed, in the year 1825, by the Governor and Judges of the territory of Michigan, to the “Trustees of the University of Michigan” as organized under the act of 1821, for the use of the University; and we are referred to the decision in The Regents of the University v. The Board of Education of Detroit, 4
The judgment of the Court below must be reversed,.' with costs to the plaintiffs in both Courts. And the defendant must have leave to plead to the declaration.
The University of Michigan is a public corporation. The People, in their political capacity, are the corporators. It is a part of the educational system of the State, and is under the control of the Legislature, except so far as it has been placed beyond the reach of that body by the Constitution, and the trust attached to the University fund. In -all other respects it is subject to State legislation, and may be moulded from time to time to suit the actual or supposed wants of the public. The corporation of to-day is the corporation known as the University of Michigan, under “An act for the establishment of a University,” approved April 30, 1821. Laws of Michigan
The act of April 30th, 1821, gave to the Trustees of the University the control of both the property and government of the institution. They were declared capable of holding property, real and personal, and of buying and selling and otherwise lawfully disposing of it, with certain restrictions imposed on the disposition of property mentioned in the seventh and eighth sections of the act. Under the State government a different policy was inaugurated. The government of the institution and the control of its property were separated from each other, and no longer trusted to the same hands.
The former was given to the Regents, who took the place of trustees under the territorial organization, while the latter was retained by the State, intrusted by law to the Superintendent of Public Instruction.
This office was created by the Constitution of 1835. And by “An act to provide for the disposition of the University and primary school lands, and for other purposes,” approved March 20th, 1837, the Superintendent of Public Instruction was to have the care and disposition of
Changes have been made from time to time, but none showing an intention on the part of the Legislature to give to the Board of Regents power to dispose of the property of the institution.
By our present Constitution, “The proceeds from the sales of all lands that have been or hereafter may be granted by the United States to the State, for educational purposes, and the proceeds of all lands or other property given by individuals, or appropriated by the State for like purposes, shall be and remain a perpetual fund, the interest and income of which only is to be expended:” —Art. XIII, § 2. And by § 8 of the same article it is provided, “The Board of Regents shall have the general supervision of the University, and the direction and control of all expenditures from the University Interest Fund.”
Here is a constitutional provision giving the Regents control of the interest of the University fund, -but not of the fund itself. Why this constitutional provision if it was intended the Regents should have the control and disposition of the property of the University, as the trustees had under [the act of 1821 ? If it be said, these lands were deeded to the University, and therefore do not come within the description of lands which the Commissioner of the State Land Office is authorized to sell — that officer, instead of the Superintendent of Public Instruction, now having the sale of the [University and school lands — the reply is,
I would stop here, but for a suggestion that has been started on which I will say a few words.
It has been ^suggested whether the land contracted to be sold may not be held by the corporation in trust, with power to sell the same. If we suppose such to be the case, I do not see that it removes the difficulty I have stated — the want of power in the Board of Regents to convey. I do not understand that the functions of a corporation can be enlarged by a deed of trust; that is, that a trust can be made the means of communicating new faculties to a body corporate. The admission of such a principle would enable a corporation, after parturition, to be metamorphosed into quite a different being; so much so as hardly to be recognized, if not seemingly to lose its identity. An insurance company might be changed into a bank, and a bank into an insurance company. When a corporation is made a trustee, the execution of the trust must come within the faculties of the corporation, or the trust must go unexecuted until a competent trustee is appointed. If we are correct in these views, the error in supposing the facts suggested would help the plaintiff, lies in taking it for granted that the power of the corporation to convey is in the Board of Regents instead of the State.
If it he said the suggestion may be carried a step-further, and take it for granted that by the trust deed the power to sell is given to the Board of Regents, and not to the corporation, it does not extricate us from the-dilemma. If the trust is to the Regents of the University of Michigan, that being the corporate name, it is to the-corporation, and not to the persons composing the Board of Regents, as individuals. If it is to them as individuals, they must execute it in their individual capacity, and not in the name- of the corporation. The contract is in the name of the corporation. And the power of the corporation to convey, as I have attempted to show, is not in the Board of Regents, but in the corporators, the People in their legislative capacity; in other words, in the State.
For these reasons, without noticing the other questions made on the argument, I think the judgment of the Court, below should be affirmed, with costs.
Judgment reversed.