St. Louis Public Schools v. Risley, 28 Mo. 415

St. Louis Public Schools v. Risley

28 Mo. 415 | Mo. | 1859

Scott, Judge,

delivered the opinion of the court.

"We do not see on what ground the court compelled the plaintiff to elect on which of his titles he would base his right of recovery. This is an action of ejectment, and the plaintiff’s right to the immediate possession of the land in controversy is averred in the petition. Now if the plaintiff, in making out his case, should fail to establish one title on which he relied, on what principle would he be restrained from falling back on another title which showed his right to a recovery ? Is not this every day’s practice? We do not see what connection the power assumed by the courts, of compelling the party to elect when causes of action are improperly joined, has with this question. Here there is but one cause of action for one specific thing, and there can be no reason why, if the plaintiff fails to establish his right to recover by one title, he should be denied the privilege of resorting to another.

*419It will not be maintained that the legislature can authorize any person or officer to convey away the property of a corporation against its will. But the efficacy of the deed, under which the plaintiff claims, does not necessarily stand on the act of the general assembly authorizing the mayor of the city to execute it. The objection, that this deed is not the act of the corporation, does not come from the corporation itself. From any thing that appears, the corporation is satisfied with the act of the mayor, and is willing to abide by it. If the corporation had denied the authority of the mayor, we know that there would have been no want of evidence of the fact. When a municipal corporation is satisfied with the act of its agent, and is willing that it should stand, there should be a solid reason why third persons, who have no interest in the matter, should be permitted to invalidate it. If an act has been done for and in the name of another, and he, being-aware of it, does not object to the want of authority in his agent, why should a third person be suffered to do it for him ? These considerations serve to show the reasonableness of the rule in law, that when the common seal of a corporation appears to be affixed to an instrument and the signatures of the proper officers are proved, courts are to presume that the officers did not exceed their authority. ' The contrary must be shown by the objecting party. (Angel & Ames on Corp. Sec. 224 ; The President, Managers & Company of the Berks & Dauphin Turnpike Road v. Myers, 6 Serg. & Rawl. 12.) This is not a case involving the question whether a corporation under its charter has authority to do an act. Where the question is as to the power of a corporation as an entire body to do a thing, there, of course, the affixing of the seal is no evidence of its authority. But when an act is within the powers of a corporation, and its existence is witnessed by an instrument clothed with the formalities requisite to bind it, there is no hardship in the rule which imposes on one objecting to its validity the necessity of showing that it was without the assent,necessary to its existence.

Reversed and remanded.