Smith v. Smith

• Citation: 1872 WL 8078,62 Ill. 493
• Parties: ANDREW SMITHv.FRANK W. SMITH et al.
• Decision Date: 31 January 1872
• Court: Supreme Court of Illinois

62 Ill. 493

1872 WL 8078 (Ill.)

ANDREW SMITH

v.FRANK W. SMITH et al.

Supreme Court of Illinois.

January Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison County; the Hon. JOSEPH GILLESPIE, Judge, presiding.

The facts appear in the opinion of the Court.

The tax deed offered in evidence was upon sale in 1859.

Messrs. DALE & BURNETT & POEME, for the appellant.

Messrs. METCALF & GILLESPIE, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of ejectment, brought by appellees, in the Madison circuit court, against appellant, to recover three eighty-acre tracts of land, situated in that county; the declaration was in the usual form, and to it was filed the plea of not guilty; a trial was had at the May term, 1870, and resulted in a verdict and judgment in favor of plaintiffs; a new trial was granted under the statute. At the May term, 1871, a trial was had by the court without a jury, by consent of the parties, with a like result; and defendant appeals to this court, and asks a reversal of the judgment of the court below.

Appellees proved a regular chain of title from the general government to the Mississippi & Atlantic Railroad Company, a corporation organized under the general incorporation law of 1849. To prove title in their ancestor, Sanford S. Smith, appellees read in evidence a deed purporting to be a conveyance from the company to him, dated on the 6th day of September, 1855, for the lands described in the declaration. The consideration named in the deed is three thousand four hundred and thirteen dollars and twenty-five cents; and the attesting clause is as follows:

“In witness whereof, the said Mississippi & Atlantic Railroad Company has caused these presents to be signed by their vice-president, acting as president by reason of a vacancy in the presidency, and their corporate seal to be hereto affixed the day and year first above written.

JOHN BROUGH,

+--------------------------------------------------------------------+
                ¦[R. R. SEAL.]¦Vice-Pres. and Acting Pres. M. & A. R. R. Co.”  ¦
                +--------------------------------------------------------------------+
                

There is no objection urged against the acknowledgment, but it is insisted that the instrument is not executed by the proper officers of the company, and was for that reason void and of no effect. It is contended that the vice-president of the company had no power to execute the deed, but that the president alone had power conferred upon him for the purpose, and that the by-laws of the company required the secretary, who was the keeper of the seal, to annex it and countersign all deeds for the conveyance of its lands.

From the minutes of the proceedings of the company, it appears that a resolution was adopted at a meeting of the directors of the company, held in the previous month of November, by which the president was directed to sell the property, and to execute the necessary deed therefor, under the seal of the company. Brough was, at the time this resolution was adopted, the president of the company; but, at a subsequent election, he was elected vice-president, and one Rose president; but the latter refusing to act, the vice-president assumed the discharge of the duties of president.

In the absence of legislative enactment or provision made in the by-laws, corporations usually act through their president, or those representing him. He being the legal head of the body, when an act pertaining to the business of the company is performed by him, the presumption will be indulged...