Altschul v. Casey

• Decision Date: 13 June 1904
• Citation: 76 P. 1083,45 Or. 182
• Parties: ALTSCHUL v. CASEY. [*]
• Court: Oregon Supreme Court

76 P. 1083

45 Or. 182

ALTSCHUL v. CASEY. ^[*]

Supreme Court of Oregon

June 13, 1904

Appeal from Circuit Court, Crook County; W.L. Bradshaw, Judge.

Action by Charles Altschul against William T. Casey relative to the ownership of real property, the plaintiff claiming through legal conveyances from the general government, and the defendant by adverse possession. The trial resulted in a verdict and judgment for the plaintiff, and the defendant appeals. Affirmed.

B.S. Huntington, for appellant.

C.E.S Wood, for respondent.

WOLVERTON J.

After introducing a patent from the United States to the Willamette Valley & Cascade Mountain Wagon Road Company, plaintiff introduced a deed from the company to H.K.W. Clark, with reference to which two questions arose: First, whether it was admissible without showing aliunde that the company was an incorporation; and, second, whether it was legally executed. It purports on its face to be an indenture "between the Willamette Valley and Cascade Mountain Wagon Road Company, a body corporate under the laws of the state of Oregon, party of the first part, and H.K.W. Clark, *** party of the second part"; is signed "Luther Elkins, President of the Willamette Valley and Cascade Mountain Wagon Road Company," and "James Elkins, Secretary of said Company," the letters "L.S." appearing beneath these signatures; and was "sealed and delivered in presence of" Eli Carter and Jas. L. Cowan. The notary before whom the same was acknowledged certifies that the officers signing executed the instrument for and on behalf of said company for the uses and purposes mentioned.

Answering the first objection, it must be conceded that a corporation must have a legal existence, and be capable of taking a conveyance, otherwise a deed purporting to convey land to it will be a nullity. But when we turn back to the patent we find that the Legislature of the state has recognized the road company as capable of taking, because it has, by an act approved October 24, 1866, donated lands to the company, and the United States government has so recognized it by conveying to it by patent. These things coupled with the fact that the company assumed to convey the same lands as and in the capacity of a body corporate under the laws of the state of Oregon, are enough, prima facie at least, to establish its legal entity as a corporation, if it were necessary otherwise to prove it after the deed has itself recited the fact.

As to the grantor's authority to execute, we agree with counsel for the respondent that the fact that it appears upon the face of the deed that the corporation caused it to be executed, which deed has since been recognized as valid ( Cahn v. Barnes [C.C.] 7 Sawy. 48, 5 F. 326), is sufficient, after a lapse of more than 30 years, to establish presumptively the requisite authority thereto.

The second objection is fully answered by the case of Moore v. Willamette T. & L. Co., 7 Or. 359, the facts of which are almost identical with those developed here, the one signal exception being that what is claimed to be the corporate seal here is indicated by the letters "L.S.," while in that case it is written out "Seal of Corporation." It will be noted that the instrument was proven in this case by the record of deeds not by a production of the original. In a similar instance it was said in Holbrook v. Nichol and Prettyman, 36 Ill. 161, 164: "Inasmuch as the impression of the device of the seal cannot be transferred from the instrument to which it is affixed to the record, by the officer making the record, it is only necessary that he should, in some appropriate mode, indicate that a seal was affixed to the certificate. And when the letters 'L.S.,' the word 'Seal,' or a scroll is employed for that purpose, no reason is perceived why it is not sufficient. It is not to be expected that the officer making the record of the original instrument can make a fac simile of the impression of the seal. So that, where the seal on the original is indicated on the record or a copy in the manner we have specified, it must be held to answer the requirements of the law." See, also, Bucklen v. Hasterlik (Ill.) 40 N.E. 561. In the light of these authorities when the position of the seal with relation to the signatures of the officers executing is considered, we may well assume that it was intended to indicate the seal of the corporation, so that the fact of the recording officers' indication of the corporate seal by the letters "L.S." does not in reality differentiate or distinguish this case from that of Moore v. Willamette T. & L. Co., supra, and the deed must be held to have been in form legally executed. It was therefore properly admitted in evidence.

The next deed in the chain of plaintiff's title is from H.K.W. Clark to David Cahn, executed September 1, 1871. It recites a consideration of $1, and conveys, among others, the premises in dispute. It further recites that "the property hereby granted was delivered unto the party of the first part by and through a deed of conveyance dated August 19, A.D.1871, executed and delivered by the said Willamette Valley and Cascade Mountain Wagon Road Company to the said party of the first part [being the deed heretofore in this opinion discussed]. But this conveyance is nevertheless made to the said party of the second part only upon the express trust that he the said party of the second part shall and will hold all the property hereby granted to the use of T Egenton Hogg, Alexander Weill and the said party of the first part, and that he will sell, mortgage, convey or otherwise dispose of said property or any part thereof to and only to such person or persons, party or parties, corporation or corporations and at such and only such time or times and in such and only in such manner and upon such terms as the said T. Egenton Hogg, Alexander Weill and the said party of the first part, or in case of the death of any of the last named parties then as the survivor or survivors of said three parties and the executors or administrators of the deceased party or parties, but not the heirs or legatees of either, shall in writing, such writing to be by them severally subscribed and duly acknowledged, name and appoint and determine, and in case of any sale or sales or other disposition of said property or of any part thereof shall and will at once apply the proceeds arising from such sale or other disposition so far as shall be necessary to the payment of the money advances that have heretofore been made by the said Weill and the said party of the first part in the purchase of said property, the amount of which said advances have been determined by the parties and are specifically set forth in a written agreement executed between the said Hogg, Weill and the said party of the first part, which agreement is of even date herewith. And to the payment of such further or additional money advances as the said Weill and the party of the first part may hereafter make pursuant to the terms of the said written agreement. And the interest that shall have accrued upon any and all advances according to the provisions of said agreement and after the payment of all said advances and interest shall and will pay all the balances of the proceeds of the sale or sales or other disposition of...