53 Wis. 309 | Wis. | 1881
The plaintiffs claim to the title of the land in question is based upon the sheriffs deed of December 20, 1879, given on the foreclosure of the mortgage executed by Butler March 23, 1874. It is conceded that neither of the churches, nor any of their trustees named in the lease given by Butler to them November 16, 1863, were parties to that
It is claimed that the description in the lease is void for uncertainty, because it fails to state the section on which the land is located, and that it should therefore have been rejected, and no parol evidence admitted in aid of it. But this court has .quite recently held that a deed with a description otherwise ambiguous and uncertain should be construed with reference to the actual rightful state of the property at the time of its execution, and that for that purpose extrinsic evidence may be admitted in order to place the court in the position of the par
It is claimed that the lease and all evidence in relation to the churches should have been rejected, for the reason .that there was no sufficient evidence that either of the churches had any legal existence. The only evidence of incorporation, aside from the acts stated, is a copy of the original record of the certificate of incorporation of the First Free-Will Baptist Church of Grand Prairie, town of Mackford, bearing date April 3,1862, purporting to be signed by two persons appointed by a majority of the male persons of full age belonging to the society, at a meeting thereof March 29, 1862, as appears of record in the register’s office of Green Lake county, and which copy is certified to by the register of deeds of that county. Whether the certificate is sufficient to prove the incorporation or not, or whether any defects in it are cured by chapter 94, Laws of 1879, it seems to be unnecessary to determine. In Franklin v. Twogood, 18 Iowa, 516, it was held that “ the execution of a mortgage to a corporation is an admission of its corporate existence, and estops the mortgagor
In Den v. Van Bouten, 10 N. J. L., 270, it was held that, £iin an action of ejectment brought by the assignee of a mortgagee against a mortgagor, upon a mortgage given to a corporation, it is not necessary to produce the charter of incorporation. The admission by the defendant himself, in -•thedeed of mortgage, is sufficient proof, when uncontradicted, of the existence of the incorporation.”
In the Congregational Society v. Perry, 6 N. H., 164, it was held that “ he who gives a note to a corporation is not to be permitted to deny that there is such a corporation.” To the same effect are Topping v. Bickford, 4 Allen, 120; Merchants' Nat. Bank v. Glendon Co., 120 Mass., 97; Huffaker v. Nat. Bank, 12 Bush, 287; Vater v. Lewis, 36 Ind., 288; John v. F. & M. Bank, 2 Blackf., 367; Montgomery R. R. Co. v. Hurst, 9 Ala., 513; Jones v. Bank, 8 B. Mon., 123; Rector, Church Wardens, etc. v. Lovett, 1 Hall, Sup. Ct. R., 191. In the last ease cited it was held that, “ where there has been a body corporate de facto for a considerable period of time, claiming at least to be such, and holding and enjoying property as a corporation, it will be presumed that every mere formal requisite to the due creation of the corporation has been complied with.” It was further, in effect, held in that case, that one contracting with such church in its corporate name thereby admits the existence of the corporation, and cannot thereafter deny it; and, where suit is brought by the trustees of sueh church colore officii, the defendant cannot object upon the ground that they are not trustees, without showing that proceedings have been instituted against them by- the government, and carried on to a judgment of ouster.
In the light of these authorities, we must hold that Butler is in no position to deny that any estate passed by the lease,
With the view we have taken of the case, it becomes unnecessary to consider the other questions presented. No attempt was made to show that the churches had forfeited the grant contained in the lease by non-user or mis-user, and until such forfeiture the right to possession and use must remain in the trustees of the respective churches. Messer v . Oestreich, supra.
Eor the reasons given, the judgment of the circuit court must be reversed, and the cause remanded with directions to dismiss the complaint.
By the Oourt.— So ordered.