Douthitt v. Stinson

• Decision Date: 31 October 1876
• Citation: Douthitt v. Stinson, 63 Mo. 268 (Mo. 1876)
• Parties: J. G. DOUTHITT, et al., Plaintiffs in Error, v. EDMUND STINSON, Defendant in Error.
• Court: Missouri Supreme Court

63 Mo. 268

J. G. DOUTHITT, et al., Plaintiffs in Error,

v.EDMUND STINSON, Defendant in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to Moniteau County Circuit Court.

Moore & Williams, and Ewing & Smith and Pope, for Plaintiffs in Error.

I.The title to the land in dispute was passed by patent to Dr. Douthitt.The legal title being thus vested in him, the question is, whether it has passed out of him by grant or by operation of law in consequence of adverse occupancy.

II.To constitute a valid grant, three things are necessary: a natural or artificial person capable of granting or passing the title, a thing that is the subject of a grant, and a natural or artificial person capable in law of receiving or taking by the granting.The “town of Lancaster and Lancaster Seminary” never had any corporate existence.The grantees in the deed are designated therein as directors, etc.They were directors of an unincorporated town and seminary of learning.No person is named as director of this association, but the deed is to the “directors” without naming the persons who constituted such directory.These directors were the officers of a fictitious, artificial person, the directors of a legal myth and artificial nonentity.

“A deed to the directors or trustees of an unincorporated association is void because they have no legal capacity to take or hold real property.”(German Association vs. Scholler, 10 Minn. 331;Jackson vs. Cary, 8 John. 385;Thomas vs. Marshfield, 10 Pick. 364;Swaine vs. McCohany, 4 Ohio, 157;3 Washb. Real. Prop. 238.)

III.If it is contended that these “directors” are trustees of a trust estate created by the deed of Douthitt to them, for the benefit and use of the numerous persons who subscribed to the “Seminary enterprise,” then the deed must be held bad, for the persons who were to take the trust cannot be ascertained.(StoEq. Jur. § 979;Wheeler vs. Smith, 9 How.[U. S.]55.)There was then no grantee named in the deed capable in law of taking and holding the title to said real estate, and, consequently, there was no grant, and the said deed did not operate as a conveyance of the legal title to said land out of Dr. Douthitt.It remained in him notwithstanding the deed, and, of course, descended to his heirs, the plaintiffs, unless it has passed by operation of the law of limitations.

IV.Plaintiff's ancestor was at the outbreak of the rebellion, and during the continuance thereof, a resident of the States of Arkansas and Texas--States embraced within the hostile territory--and its inhabitants were subjected by reason of the state of war, to the disabilities imposed thereby, and could not assert any right in the courts of Missouri, and being under such disabilities, the statute of limitations would not run against him during the continuance of his war disability.This time must be deducted from the time of the defendant's occupancy, which thus falls far short of the time necessary to acquire the title.(11 Wal. 244, 493, 503; 1 Dillon, 372;10 Wal. 218;57 Ill. 275.)

V.The defendant can invoke the statute of limitations only from the time he took open and notorious possession under color of title, which, according to his own evidence, was not until the spring of 1863.This color of title is dated May 5th, 1862, less than ten years before the commencement of this suit.The possession of the board of directors, etc., had ceased more than twenty years before, and there had been no continuous possession and no privity with said association.Hence, his defense utterly failed.(Fugate vs. Pierce, 49 Mo. 441;Harrison vs. Cachelin, 23 Mo. 117.)

Owens & Wood, for Defendants in Error.

I.It is not necessary that an act of the legislature or charter shall be offered in evidence in order to establish the existence of a private corporation.Angel & Ames (Priv. Corp. § 70, 8th Ed.) correctly state the rule: “It may be considered well settled that a corporation may exist in this country by presumptive evidence.* * * *

It may indeed be safely relied on as a sound proposition, that when an association of persons have for a long time acted as a private corporation, and have been uniformly recognized as such, and rights have been acquired under them as a corporation, the law will countenance everything in favor of its legal corporate existence at least, except against the Sovereign.”

Under this rule the evidence in this case clearly proves the grantees in the deed a corporation.

The non-user of corporate power now, will not affect the acts done while it was in operation, or the legal presumption arising from those acts.(Kayser vs. Bremer, 16 Mo. 88.)

II.The plaintiffs are estopped from denying the capacity of their ancestor's grantee to receive the title, especially since he has received the purchase money and acted as a director of the company.(St. Louis vs. Shields, 62 Mo. 247;Smith vs. Heidecker & Gant, 39 Mo. 157;Dickson vs. Anderson, 9 Mo. 156;Smith vs. Sheely, 12 Wal. 358;Meyers vs. Craft, 13 Wal. 291;Bowers vs. Appleby, 1 Sand.[N. Y.]158;Palmer vs. Lawrence, 3 Sand.[N. Y.]161.)Attention is especially directed to the authorities cited in notes of H. B. Johnson to case of Land vs. Hoffman, reported in Am. Law Reg. vol. 12, p. 143.

III.The court declared the law on the statute of limitations more favorably to plaintiffs than they had a right to expect.The question of the suspension of the statute during the war is a mere abstraction.So far as this case is concerned the statute of twenty-four years is complete after deducting the whole time of the war.

NAPTON, Judge, delivered the opinion of the court.

This was an action of ejectment commenced April 16, 1872, by the heirs of W. W. Douthitt, deceased, to recover the west half of the southwest quarter of section 33, township 45, range 16.

The plea denies the general allegation in the petition, and then sets up the following facts in defense:

In 1839 certain persons associated themselves to buy the real estate described in the petition, with a view to lay the same off into town lots, and selling them and erecting a seminary of learning on them, and subscribed and paid a sum of money sufficient to pay for forty acres of said land described in the plaintiff's petition, and placed said money in the hands of W. W. Douthitt and one T. G. Lancaster, as trustees.The answer further alleges that Lancaster and Douthitt did purchase the whole tract sued for, and took a title in the name of Douthitt, as trustee; that the association paid Douthitt the amount he paid as purchase money, and received from him a deed in which the grantees were described as “the board of directors of the town of Lancaster and Lancaster Seminary and their successors in office.”

The defendant avers that this association was known and transacted all their business under the name and style of The Town of Lancaster and the Lancaster Seminary; that prior to the 28th of Sept., 1839, said association of persons appointed and constituted certain of their members, to-wit: Wade Howard, Phillip Barger, T. G. Lancaster, G. J. Robertson, Archibald Woods, Benjamin Gilbert, Samuel Calhoun and W. W. Douthitt, as a board of directors to hold the title to said land, manage and sell the same, and generally to manage and control the business of said association, and said persons so constituting said board became known as and were styled the board of directors of the town of Lancaster and the Lancaster Seminary; that afterwards, and on the 28th day of September, 1839, said W. W. Douthitt, in the execution of his said trust, and in consideration of one hundred dollars to him paid by said association, did, by his deed, convey all the real estate described in plaintiff's petition to the said board of directors.

It is further stated that the board immediately took possession of said land and built a school house thereon, and laid off a part of the tract as a town, and sold town lots thereon, and gave possession to the purchasers, all of which was done with the knowledge and consent of said W. W. Douthitt, who was one of the board; and said board held open, notorious, continuous adverse possession of said land from said day in 1839 until the ____ day of March, 1852, against all the world; that at this last period the association having become involved in debt, and said real estate having been sold for taxes, the surviving members of said board bargained and sold said real estate to the defendant at the price of $280, which sum was fully paid by defendant, and said surviving members of said board placed defendant in possession of said land, and defendant has made valuable and lasting improvements thereon; that said Douthitt was informed of this sale, made no objections to it, and permitted defendant to occupy and improve the land without objection, wherefore said W. W. Douthitt and his heirs are estopped from asserting any claim adverse to the title of defendant.The bar of the statute of limitations is then set up, both of ten years and of twenty-four years.

The replication is a specific denial of each allegation in the answer.In reply to the defense of the statute of limitations, the plaintiffs assert that their ancestor, W. W. Douthitt, removed from Missouri to Arkansas in 1856, and continued to reside in said State or in Texas up to the war in 1861, and to the date of the peace proclamation on the 13th of June, 1865, and therefore that the statute of limitations did run during said civil war, or until 13th of June, 1865.

On the trial the facts turned out to be substantially as stated in the answer and in the replication to the answer, in regard to the statute of limitations.W. W. Douthitt entered the eighty acres in his own name, and of course the patent was issued to him.He advanced part of the money, but on the return of himself and Mr. Lancaster, his associate, from the land office, and receiving the money advanced by him, he executed a deed of bargain and sale, in which the words...