Bailey v. Trs. of Lincoln Acad.

• Citation: 12 Mo. 174
• Parties: BAILEY v. THE TRUSTEES OF LINCOLN ACADEMY.
• Decision Date: 31 July 1848
• Court: Missouri Supreme Court

12 Mo. 174

BAILEY

v.THE TRUSTEES OF LINCOLN ACADEMY.

Supreme Court of Missouri.

July Term, 1848.

ERROR TO LINCOLN CIRCUIT COURT.

CARTY WELLS, for Plaintiff.

1st. That in all cases the mortgagee has a right to foreclose his mortgage and to sell whatever interest the mortgagors have conveyed to him. See the Statute. 2nd. That the question as to what title was conveyed by the mortgage, or whether any, cannot in this proceeding be inquired into. 3rd. The makers of the deed are estopped from saying that they conveyed no title. 4th. The trustees are sued and not the corporation, if there be one, and they may hold this property by conveyance from some person, for this very purpose and with power to dispose of it in this very manner. These are questions which cannot arise here. 5th. The judgment of the court will be to sell whatever title the mortgage conveyed and the purchaser can then inquire into that right. It is given to the mortgagee as a security for his debt and he has a right to sell it. 6th. It is no incumbrance on the title. If it be incumbered at all, it is done by the mortgage.

PORTER, for Defendant. The paper set out in the petition as a mortgage is not the deed of the corporation, because it is not sealed with the corporate or common seal of said body. A corporation cannot make a valid deed or covenant without the use of its common seal, or seal ordered to be used for the particular case. Perry v. Price, 1 Mo. R. 664; Randall v. Van Vechten, 19 Johns. R. 60. It must appear on the face of the deed that the seal used is the seal of the corporation, or seal ordered to be used as such in the particular case. But suppose it could be proven by evidence other than the deed, it would surely be necessary to allege in the petition that the impression used was the common seal of the corporation, or seal ordered by it to be used for the special case. If not so alleged, the proof could not be introduced. It is the seal, and seal only which unites the several assents of those who compose a corporation aggregate, and makes a joint assent of the whole. 1 Chit. Blacks. top p. 386. A corporation aggregate cannot convey real-estate, nor appoint an agent to do an act in which real-estate, is concerned, without the use of its corporate seal. Kyd on Law of Corporations. The paper set out in the petition does not purport to be sealed with the corporate seal, but with the private seal of each who executed it. Nor is the paper set out in the petition, the deed of the individuals who subscribed and sealed it. 1st. Because it shows that they intended to act as trustees. 2nd. Because the paper contains an express agreement that they are not to be personally liable under any circumstances. Agents or trustees are never personally bound unless they act without the sphere of their authority, and create no liability on the part of their principal. Walker v. Swartwout, 12 Johns. R. 444; Olneys v. Wicks, 18 Johns. R. 122; Randall v. Van Vechten, 19 Johns. R. 60. The question in this case under the last stated principle, is not whether the security which the trustees intended to give for the balance of the debt, is binding on the corporation, but whether the contract on which the demand accrued is so binding. That the corporation is bound for the debt, and liable to the action of assumpsit, there can be no doubt. Danforth v. Schoharie Turnpike Company, 12 Johns. 227; Randall v. Van Vechten, 19 Johns. 60.

SCOTT, J.

Bailey, the plaintiff, filed a petition against Wing and others, defendants, to foreclose a mortgage executed to him by them as trustees of Lincoln Academy. The mortgage is as follows: “Know all men by these presents, that we, Richard H. Woolfolk, Horace B. Wing, Emanuel Block, Valentine J. Peers and Francis Parker, Trustees of the Lincoln Academy, in the county of Lincoln and State of Missouri, for and in consideration of the sum of eleven hundred and ninety-two dollars to us in hand paid as trustees aforesaid for the use and benefit of said academy by David Bailey, of said county and State, have granted, bargained and sold, and do by these presents grant, bargain and sell as effectually as we as trustees aforesaid can dispose of, four certain lots of ground situate, lying and being in the town of Troy in said county of Lincoln known and designated as Collin's addition to said town as lots numbered (336) three hundred and thirty-six, (337) three hundred and thirty-seven, three hundred and fifty, (350) and (351) three hundred and fifty-one, on which lots the Lincoln Academy is situated. To have and to hold the said lots of ground together with the improvements...