Batty v. Board of County Commissioners of Adams County
| Decision Date | 29 May 1884 |
| Citation | 20 N.W. 15,16 Neb. 44 |
| Parties | ROBERT A. BATTY, ADMINISTRATOR, ETC., APPELLANT AND PLAINTIFF IN ERROR, v. THE BOARD OF COUNTY COMMISSIONERS OF ADAMS COUNTY ET AL., APPELLEES AND DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
THIS case came here on appeal by plaintiff, from Adams county GASLIN, J., presiding. After being so docketed, a petition in error was filed by plaintiff, and without further action the cause was argued and submitted at the January term, 1882. At the July term, 1882, the court of its own motion ordered a reargument, which took place at the present term.
AFFIRMED.
Batty & Ragan, for plaintiff.
I. Neither the charter nor powers of attorney conveyed the legal title. But suppose the court should conclude that a number of persons, being tenants in common of realty, might organize themselves into a corporation, as was done in this case, and thereby convey their interests in lands to the corporation. There are no words in this charter that could be tortured into "apt words of conveyance;" nor do the words used show an intention to convey. Again, all the surrounding circumstances and the powers of attorney executed subsequently to the organization of the corporation by the tenants in common prove conclusively that they did not intend to convey nor understand they had conveyed to the corporation. Why these powers of attorney to the president and secretary if it was intended the charter should operate as a conveyance? We find no language in its charter permitting this corporation to act as attorney in fact for any one, and had it done so the acts would be ultra vires. Angell & Ames, 256.
Then if the language of the charter itself does not amount to a conveyance, and all the subsequent acts of the owners evidence no intention to convey nor idea on their part of having conveyed, we fail to perceive by what process the charter is to be construed as a conveyance. Did the powers of attorney convey the title of this property to the corporation? Being instruments in writing, they must speak for themselves, and they say: "Have made, constituted and appointed, and by these presents do make, constitute, and appoint the president and secretary of the Hastings Town Company our true and lawful attorneys."
The letters of attorney do not attempt to confer any power whatever on the corporation, and the most that can be said is, they attempted to make attorneys in fact of the individuals holding the offices of president and secretary and these individuals, and they only, were empowered to convey. Such being the case, they should have executed the conveyances in the name of their principal, and signed their own names as attorneys in fact, in order to make such conveyance a deed of the principal. 3 Wash. Real Prop., 249, § 12. 16 Mass. 42. 7 Id., 14. 6 Pick. 409. 64 N.Y. 357.
II. The power of attorney made by Carl to the first corporation was revoked by him in 1877, and the deed made to the county in 1878. We admit he was bound by the records, and what did they disclose? 1. A patent for the w. 1/2, s.-e. 1/4 12, 7, 10 to Micklin. 2. Deed from Micklin to Farrell for an undivided one-half of this realty. 3. Deed, Farrell to Carl, an undivided one-fourth. 4. Farrell to Smith, an undivided one-fourth. 5. Micklin to Farrel, an undivided one-fourth; and in all the conveyances that follow, Carl still holds his one-fourth interest, and no instrument appears to convey that away. He sees the charter of the Hastings Town Company, signed by Carl and others, but nothing in this leads him to suspect that Carl by signing it either intended to convey or did convey his interest to the corporation. He also finds on record a power of attorney from Carl to the president and secretary of the corporation, authorizing them to "sell and convey" his interests in this block; but there is no deed on record showing that such president and secretary have sold and conveyed this block, and a little further on, he finds on record a revocation of this very power of attorney. Having made this search, he purchased. Did prudence or law require him to do more? The county was affected with notice of the revocation of the power of attorney, for it was on record, in the custody of its own officer at the taking possession of this block. Barada, when he purchased, had no actual or constructive knowledge of the claim of the county to this block. He found a clear title of record in his grantor. Found him paying and this county receiving taxes on this very block. No one was in possession. It was vacant, as were hundreds of other blocks in the same city. He took the deed, paid his money, and it now remains to be seen by what rule of law or equity the county shall take this property from his heirs.
O. B. Hewett and O. P. Mason, for defendants, cited: Boone Corp., p. 47. Angel & Ames, § 169. 4 Wait's Actions and Defenses, 164. 7 Id., 119, 120. Id., 117. 20 Ohio 241. 2 How., 76. Fisher v. Field, 10 Johns., 495. 2 Story's Equity, 439. 2 Wash. Real Prop., 69. New York v. Schuyler, 34 N.Y. 30. Morawetz on Private Corporations, §§ 2, 8, 61, 62-73, 211. Thomas v. Dakin, 22 Wend., 109.
This is an action of ejectment to recover a one-fourth interest in block fifteen in the city of Hastings. The court below found the issues in favor of the defendants, and dismissed the action. The only error assigned in the motion for a new trial is that "the findings of fact made by the court and the judgment therein are contrary to law and the evidence in the case."
It appears from the record that the original town site of Hastings, consisting of the west half of the south-east quarter of section 12, town 7, range 10 west, in October, 1872, was owned in common by Walter M. Micklin and Thomas E. Farrell, who at that time had said land surveyed and platted and the plat recorded. Conveyances of a joint interest in said site were made to various parties, so that on the 17th of April, 1873, the title to the same was held in common by James D. Carl, William L. Smith, William B. Slosson, Samuel Slosson, Thomas E. Farrell, and Walter M. Micklin. On that day the parties organized into a joint stock company, and were duly incorporated as such under the name of the Hastings Town Company. The object of said corporation as set forth in the third article of incorporation was to sell and dispose of the lots in the town site of Hastings for the mutual benefit of the members.
The fourth article provides that the capital stock of the company shall be four thousand dollars, in shares of $ 100 each, to be paid in at the organization. The fifth article provides for the election of five directors, who shall elect from their number a president, secretary, and treasurer. The eighth article limits the indebtedness of the corporation and provides that "the agent shall in no case sell more than twenty lots to one party without the consent of all the directors." The tenth article provides that "the president shall have power to convey the property of the corporation, such conveyances to be countersigned by the secretary," and the fifth article of the by-laws is to the same effect. The articles are signed by the parties, and are attested and acknowledged with all the formalities of a deed. The estimated value of the town site at that time appears to have been $ 4,000, and stock to that amount was immediately after its organization issued by the company and delivered to the stockholders in proportion to their respective interests. The testimony shows that this stock was actually worth $ 100 each share. ...
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