Bumgarner v. Cogswell

• Decision Date: 31 January 1872
• Citation: 49 Mo. 259
• Parties: CHARLES BUMGARNER Respondent, v. JOHN C. COGSWELL et al., Appellants.
• Court: Missouri Supreme Court

49 Mo. 259

CHARLES BUMGARNER Respondent,

v.JOHN C. COGSWELL et al., Appellants.

Supreme Court of Missouri.

January Term, 1872.

Appeal from Pettis Circuit Court.

Crandall & Sinnett, for appellants.

The quit-claim deed from John C. Porter and R. R. Powell, trustees of said company, to plaintiff, should have been excluded. Trustees must be regularly appointed, or empowered and authorized to act. The Pacific Railroad Company did not appoint and nominate said Porter and Powell trustees. (Hill on Trustees, 92, 96, 289.) Power was given to said company by Combs and wife's deed to nominate and appoint new trustees, upon Billon's refusal or failure to act. There is no evidence that this was done. (Hill on Trustees, 289.) No deed to said Porter and Powell, or authority in them to act, having been shown, the deed from them to plaintiff was void, and did not invest plaintiff with the title to said lot. (Hill on Trust. 196, § 186; Adams' Eq., § 38.)

Wright & Snoddy, for respondent.

The deed from the company to plaintiff, by the president thereof and the trustees, is sufficient. Combs' deed to Billon for the use of the company expressly authorized the company to constitute other trustees, and as the president of the road and the trustees signed and sealed the deed to plaintiff, and as the railroad sets up no denial of the deed, it does not lie in the mounths of appellants, who are utter strangers and have therein no interest, to deny the validity of the deed.ADAMS, Judge, delivered the opinion of the court.

This was an action of ejectment for a lot in the town of Smithton, in Pettis county. The plaintiff claimed title as follows:

1. William E. Combs took possession of the land and caused it to be laid off into lots, blocks, streets and alleys, and made out, acknowledged and recorded a plat of the town.

2. A deed from said Combs and wife to Frederic L. Billon, in trust for the Pacific Railroad, which deed contains this language: “The said trustee, at all times, upon the demand or order of the board of directors, by deed to be duly executed and acknowledged, shall convey any or all of the above-described real estate to such parties and for such consideration as the board of directors shall direct; and in the event of the failure or refusal of the said Frederic Billon to accept and execute the trust herein created, the said Pacific Railroad shall have power, by deed duly executed under the seal of said Pacific Railroad, to renominate and appoint another trustee, who shall by such deed be fully vested with all power and authority...