55 Mo. 218 | Mo. | 1874
delivered the opinion of the court.
This was an action of ejectment, brought by the respondent against Gustave Pirner to recover the possession of a lot of lands described in the petition as follows:
Being in the. city of Lexington, Lafayette county, State of Missouri: “Beginning at a point in the west side of Cedar street in the said city, forty-six feet north of the north-east corner of block number thirty-six, as known and designated on the plat of the first addition to the town of Lexington, now on file in the recorder’s office for said county of Lafayette; and being the north-east corner of a piece of land s.old by William S. Field to Joseph Traxell, and running thence in a westerly direction, with the line of said land so sold to said Traxell, one hundred and forty-six feet to a point in a private alley left by said Field, and being the north-west corner of said lot so sold to said Traxell, thence in a northerly-direction on i line parallel with' said Cedar street thirty feet nine in
After the commencement of the suit the defendants, Jeremiah Bear and Susan Bear, were made parties defendant at their own request.
The defendants by their answers deny the allegations of the petition, except that the possession of defendant Pirner is admitted; while defendants Bear and wife charge that their co-defendant is rightfully in the-possession of the premises as their tenant. Both parties claim to derive title to the premises in controversy through and from George Shewalter and Jeremiah Bear. The plaintiff claims by virtue of a deed from George W. Shewalter and Josiah Bear and his wife to Joseph Shewalter, dated Feb. 10th, 1863; and by deed from Joseph Shewalter to Joseph ~W. Shewalter (the plaintiff), dated October the 4th 1870.
The defendants claim by virtue of a sheriff’s deed, by which the title and interest of George Shewalter and Jeremiah Bear is attempted to be conveyed to the Farmers Bank of Missouri: the land having been sold by the sheriff by virtue of two judgments rendered in the Lafayette Circuit Court, one in favor of the Merchants Bank of St. Louis and against George Shewalter and Jeremiah Bear et al., dated May 24th 1S62, for $382; the other in favor of Lee H. Warriner, and against George W. Shewalter and Jeremiah Bear, dated Nov. 27th, 1862, for $672; and executions thereon,which were in due time issued and levied on the land in controversy by the description of “a house and lot, situate on a strip of ground between the first addition and Anderson’s addition to Lexington and fronting Pine street, and north of the Turners’ Hall in 'the city of Lexington; lying and being situate in Lafayette county, Missouriand by a deed from the Far
The plaintiff objected to these records being read in evidence, because the execution was not levied on the premises in controversy. This objection being overruled he excepted»
The defendant then offered in evidence the transcript of a judgment and execution, &c., rendered in the Lafayette Circuit Court in favor of one Warriner against George Shewalter and Jeremiah Bear, rendered on the 27th Nov. 1862, for $672-This was also objected to for the same reason that is given above, and the objections overruled and exceptions saved» The defendants next offered in evidence the sheriff’s deed conveying the interest of said Bear and Shewalter in the premises in controversy, by the description in the levy aforesaid, to The Farmers Bank of Missouri by virtue of the said executions and judgments. To the introduction of this deed the plaintiff -objected, on the ground that it did not convey the land in controversy, and second, that the sale did not take place at the proper term of the court. These objections were overruled, and the deeds admitted in evidence.
The defendant then introduced several witnesses,who testified that the premises in controversy are well known, in the community and neighborhood where they lie, by the description in the levy made by the sheriff and in the sheriff’s deed, that is to say “lying and being situate in the county of Lafayette, in the State of Missouri, to-wit: also a house and lot, situated on a strip of groand between the first addition and An
Witnesses on the part of the plaintiff testified, that the lot could not well be ascertained by the description in the deed, but the difficulty stated seemed to grow out of the fact, that the size of the lot was not given in the description, and that it was falsely and mistakenly stated to front on Pine street. It was also shown, that the lots on the strip referred to had always in conveyances been described by metes and bounds,
The plaintiff introduced evidence in rebuttal, tending to prove, that George Shewalter and Jéremiah Bear, previous to the sheriff’s sale, had a settlement with the “Farmers Bank of Missouri,” and extinguished all indebtedness from them to the bank. The acts of the Legislature incorporating “The Farmers Bank of Missouri” at Lexington, and relating to banks, etc., were given in evidence, so far as they applied to said Farmers Bank.
The court, after hearing all of this parol evidence and said acts of the legislature, excluded the deed of the “Farmers Bank of Missouri” to Jeremiah Bear, as trustee of Susan Bear,for the lot in controversy, on the ground that the deed was not executed by the bank, but-overruled the ground of objection that the land was not sufficiently described. The defendant at the time excepted. The court also on motion of plaintiff excluded the deed from the sheriff of Lafayette county to the “Farmers Bank of Missouri,” on the ground that the bank was not authorized to purchase said real estate, and that no title could therefore vest in the bank by virtue of said sheriff’s sale and deed. The defendants again excepted.
The court, at the request of the plaintiff at the close of the evidence, declared the law as follows : “That unless the court believes from the evidence, that the ‘The Farmers Bank of Missouri,’ at the time of. said sheriff’s sale, to-wit: On the 25th day of May, 1864, was the owner of the said judgment in favor of the ‘Merchants Bank of St. Louis’ against said Wyatt Arnold and others, and said judgment in favor of said Lee H. Warriner against said Jeremiah Bear and George W. Shewalter, and the debts evidenced thereby, or one of
The defendants objected to this declaration of law, and, their objection being overruled, they again excepted. A judgment was then rendered by the court in favor of the plaintiff, for the possession of the premises, in controversy, and damages.
The defendants in due time filed their mbtion for a new trial, and assigned among other causes ; “ that the court rejected competent, legal and proper evidence offered by the defendant“ that the court rejected the deed from the ‘Farmers Bank of Missouri’ to the defendant, Jeremiah Bear as trustee for the defendant, Susan Bear, his wife, dated 23rd of Feb., 1866 that the court made illegal and improper declarations of the law on the part of the plaintiff, and refused legal and proper declarations of law asked for by the defendants. The court overruled the defendants’ motion for a new trial, and the defendents again excepted, and appealed to this court.
There are but few points presented by the record in this case necessary to be considered by this court, for if the deed offered in evidence by the defendants from the “Farmers Bank of Missouri” to Jeremiah Bear, as trustee for Susan Bear, and the deed from the sheriff of Lafayette county to the said bank, were properly excluded as evidence inv the cause, then the declarations of law given were properly given,
The deed, offered in evidence from the “Farmers Bank of Missouri” to Jeremiah Bear, was objected to and excluded, because it was held by the court below that it was not the deed of the bank, not having been executed by the bank, but being signed by its president. This deed, by its terms, is a deed by the bank in its corporate name, as party of the first part, and is in the usual form, and concludes as follows: “In witness whereof, I, Stephen Gr. "Wentworth, as president of the ‘Farmers Bank of Missouri,’ by direction of the board of directors, have hereunto subscribed my name, and caused the common seal of said bank to be hereto affixed, this 23rd day of February, A. D. 1866.
LS. GK Wentworth,
President of Farmers Bank of Missouri.”
The official seal of the bank is affixed to the deed at the proper place. But it is contended, that the deed should have been signed in the corporate name of the bank by the president. This objection is wholly untenable. The deed is executed after the exact form prescribed by our statutes (Wagn. Stat., 273, § 5), and the form used has been held to be good by a number of cases under similar statutes. (Pitman vs. Kintner, 5th Blackf., 250; Haven vs. Adams, 4 Allen, 80; Ang. and Am. Corp., § 225.) It is the fixing of the corporate seal that gives the assent of the corporation, and fixes the validity of the deed. (Perry vs. Price, 1 Mo., 646; 15 Wend., 256.) The deed was properly executed. It conformed to the directions of our statutes on the subject, and was improperly excluded as evidence by the court.
The next question to be considered is as to the propriety of the action of the court below in excluding from the evidence in the cause the deed of the sheriff of Lafayette county}
First. Because the description of the premises in controversy, as it appeared in the deed, was too indefinite and uncertain to identify the premises in controversy, and the deed was therefore void for uncertainty. Second. Because it appeared by the deed, that the sale by the sheriff did not take place at the proper term of the court.
These objections were overruled, and the deed admitted in evidence; but the court, after hearing other evidence in the . cause, tending to prove that the defendants in the execution, under which the sheriff sold the land, were not indebted to the bank, and that the bank had no interest in the executions or judgments under which the land was sold, excluded the deed from the evidence in the cause, on the ground that the bank was not authorized to purchase the land in controversy, and that no title therefore ever vested in the bank. It is insisted by the appellant, that as the two first grounds of objection were overruled by the Common Pleas Court, and no exceptions taken by the respondent, that they cannot properly be considered in this court; but I suppose, that if it should appear from the whole record that the deed had been properly excluded, although it may have been excluded for a wrong reason, this court would not reverse the judgment on that ground alone. Therefore all objections, made to the admissibility of the deed in evidence, are properly before this court for consideration.
The first question then is,'was the description of the premises in controversy, as it appears in the deed, so uncertain and indefinite as to render the deed void for uncertainty, and whether the court could properly receive parol evidence to show that the premises were well known, and easily identified and discovered, by the description given?
It is settled in this State by a number of decisions of this court, commencing with the case of Hart vs. Rector, 7 Mo. 531, and ending with the case of Webster vs. Blount, 39 Mo., 500, that parol evidence is admissible tó show that the land
The evidence shows, that this “strip” is well known, and has been well known for many years, that it is a narrow strip of land lying between the two additions named, that the strip is crossed by streets and alleys, that there are four lots laid off on said strip between Cedar and Pine streets, two fronting on Pine street, and two on Cedar street; that the lot in question is on the west side of, and fronts on, Cedar street, and not on Pine, but that it is the only lot on said strip lying north of “Turners Hall,” that the Hall is a public building well known in the community where it is situated, that the “Turners Hall” lot and the lot in controversy are adjoining lots and both fenced in, and the most of the witnesses think that the lot could easily be found and ascertained by the description given in the deed. I think, that the evidence sufficiently shows that the description in the'deed could mislead no one, and that the objection to the deed on that ground was properly overruled by the court below. (Henry vs. Matthews, 38 Mo., 121; Bates vs. Bank of Missouri, 15 Mo., 309; Landes vs. Perkins, 12 Mo., 238; Evans vs. Greene, 21 Mo., 170; McCune vs. Hull, 24 Mo., 570.)
It is however contended by the respondent in this case, that as the lot is described as fronting on Pine street, to show that it does not front on said street, but on Cedar street, is to contradict) the deed, which is not permissible, and that Pine street,
The main question in this case is, was the description in in the deed calculated to mislead or to produce a sacrifice of the property. I think that it was not. The next objection to the admissibility of the sheriff’s deed is, that it appeared from the deed the sale did not take place at the term of the court to which the execution was returnable. It is only necessary to say in reference to this objection, that. it appears from the sheriff’s return read in evidence, that the levy was made on the land before the time fixed for the return of the writ, and that a sale took place as soon as a term of the court was holden at which the sale could ¿ake place, the same being done in exact conformity to the act of the Legislature of this State, passed at the session of the General Assembly holden in the year 1863. (Session Acts 1863, p. 20.). The next ground of objection to this deed, and the one on which the Common Pleas Court excluded the deed from the evidence in the cause, was that “The Farmers Bank of Missouri” was not authorized to purchase the real estate in question, and therefore that, no title passed to the bank. It is contended by the respondent, that the bank can only purchase or hold real estatefior the specific purposes named in the act of the Legislature creating- banks, and that, in order to authorize the bank to receive or transmit any title to real estate, it must be shown, that it was purchased for the purposes named in the act. The act relied on is as follows: “Each bank may hold such real estate as may be required for the convenience and accomodation of the bank and branches, and such as may be conveyed to the same in payment of debts
The declaration of law, given by the court in trying this cause, assumes that it must affirmatively appear to the court, that the land had been purchased by the bank under the circumstances, and for the purposes, named in the above quoted statute, or the deed attempting to convey the land to the bank will be held to be absolutely void ; and that this matter can be collaterally tried and determined upon a trial of a suit of ejectment. It is admitted, that the powers of corporations should be strictly construed, and that they should not be permitted to exercise doubtful powers. But after a corporation that has the power to hold land has purchased land, and the conveyances have been regularly executed to the corporation, it is not competent for the court, on a trial of a suit of ejectment for the recovery of the land, to decide the collateral question whether it was a violation of the charter of the corporation to receive the conveyance. It is admitted, that there are some cases that may go to that extent, but the better authority seems to be, that the question as to the validity of the title can only be tried in a direct proceeding against the corporation for that purpose. It. has been so settled by several cases decided by this court.
In the case of Chambers vs. The City of St. Louis, 29 Mo., 543, the question arose in a suit for partition, whether the City of St. Louis under her charter could take or hold land by bequest, for purposes not “necessary” for the purposes of the corporation. Judge Scott, in delivering the opinion of the court, uses this language : “Whether these lands are necessary for the corporation, is a question that can only arise in a proceeding instituted by the State against the City for abusing her right to purchase lands. The City has a power
This case was commented on, and fully approved by a late case in this court, where Judge Adams, in delivering the opinion of the court, in speaking of the amount of land that could legally be held by a railroad corporation under our laws, says: “But the amount of land it may receive cannot be decided between these parties; conceding the power to receive lands for the purposes aforesaid, no one except the State can raise the question as to the amount that may be received.” (Land vs. Coffman, 50 Mo., 243, aud cases there cited: McIndoe vs. City of St. Louis, 10 Mo., 576; Health Comm’rs. vs. Mauran, 5 Denio, 389; Ang. & Ames Corp., § 152 ; Silver Lake Bank vs. North, 4 Johns. Ch., 370.)
For the reasons, that the deed from the Farmers Bank' to Jeremiah Bear, and the deed from the sheriff of Lafayette county to “The Farmers Bank of Missouri,” were wrongfully excluded from the evidence in the case, the judgment of the Common Pleas Court of Lafayette county must be reversed. Judges Adams and Napton did not sit.
the judgment is reversed, and the cause remanded. .