Ellison v. Branstrator

• Decision Date: 07 July 1899
• Docket Number: 18,066
• Parties: Ellison et al. v. Branstrator
• Court: Indiana Supreme Court

54 N.E. 433

153 Ind. 146

Ellison et al. v. Branstrator

No. 18,066

Supreme Court of Indiana

July 7, 1899

Rehearing Denied Oct. 4, 1899.

From the Wells Circuit Court.

Affirmed.

T. E Ellison, for appellants.

Robert Lowry and Breen & Morris, for appellee.

OPINION

Dowling, J.

Action by the appellee against the appellants to recover the possession of real estate and to quiet the title thereto. The complaint contained two paragraphs. There was a trial by a jury, a special verdict, and a judgment for appellee.

The errors discussed are, the overruling of the motion for a new trial, the rulings of the court in relation to the form of the judgment, and the rendition of judgment against the appellants.

It is insisted that the court erred in admitting in evidence a deed purporting to be executed by the Lake Erie, Wabash, and St. Louis Railroad Company. The objections made to this instrument were, that it appeared to have been executed by the vice-president of the company, instead of the president; that in such case the authority of the vice-president to execute the instrument must be shown; and that this deed was not executed in the manner required by law.

In our opinion, none of the objections is well founded. Unless otherwise provided, by statute, the charter of the corporation, or its by-laws, the deed of a corporation may be executed as well by its vice-president as by its president, and when so executed, with other necessary formalities, it will be presumed that the vice-president had authority to act on behalf of the corporation. Smith v. Smith, 62 Ill. 493; Colman v. West Virginia Oil, etc., Co., 25 W.Va. 148; Lewis v. Albermarle, etc., R. Co., 95 N.C. 179; Shaffer v. Hahn, 111 N.C. 1, 15 S.E. 1033; Sawyer v. Cox, 63 Ill. 130; Bowers v. Hechtman, 45 Minn. 238, 47 N.W. 792; Ballard v. Carmichael, 83 Tex. 355, 18 S.W. 734.

In the case before us, the deed purported to be executed by the corporation, and to be attested by its seal. Its formal parts were as follows: "The Lake Erie, Wabash, and St. Louis Railroad Company, convey and warrant to Enos Pomeroy, of etc., * * * the lands and premises situate in the county of Allen, in the State of Indiana, described as follows, to wit: * * *

"In witness hereof the said Lake Erie, Wabash, and St. Louis Railroad Company, have caused their corporate seal to be hereunto affixed, and these presents to be signed by their vice-president, this 25th day of January, A. D. 1855.

"Signed, sealed, and delivered, in presence of (the word 'second' on 17th line written on, erased before delivery). Jno. M. Drummond, Secy.; I. C. Colton, Vice-President L. E. W. & St. Louis R. R. Co." (Seal.)

The deed was duly acknowledged by Isaac C. Colton in his official capacity as the vice-president of the railroad company, for and on the behalf of the company, and his affidavit that the seal of the company was affixed by the authority of the directors, was incorporated in the acknowledgment.

In a recent work on corporations it is said: "A very extensive principle in the law of corporations, applicable to every kind of written contract executed ostensibly by the corporation, and to every kind of act done by its officers in its behalf, is that, where the officer or agent is the appropriate officer or agent to execute a contract, or to do an act of a particular kind, in behalf of the corporation, the law presumes a precedent authorization, regularly and rightfully made, and it is not necessary to produce evidence of such authority from the records of the corporation. Under the operation of this principle, a deed or mortgage, purporting to have been executed by a corporation, which is signed and acknowledged in its behalf by its president and secretary, will be presumed to have been executed by its authority." Thompson on Corp., § 5029. See, also, Nat. State Bank v. Vigo, etc., Bank, 141 Ind. 352, 40 N.E. 799; Gorder v. Plattsmouth, etc., Co., 36 Neb. 548, 54 N.W. 830; New England, etc., Co. v. Farmington, etc., Co., 84 Me. 284, 24 A. 848; Eureka, etc., Works v. Bresnahan, 60 Mich. 332, 27 N.W. 524; Malone v. Crescent City, etc., Co., 77 Cal. 38, 18 P. 858; Means v. Swormstedt, 32 Ind. 87, 2 Am. Rep. 330; Pearse v. Welborn, 42 Ind. 331; Devlin on Deeds, § 343, and note.

The secretary of a corporation is the proper custodian of the corporate seal, and when he affixes it to a deed or other instrument, the presumption is that he did it by the direction of the corporation; and it devolves upon those who dispute the validity of the instrument to prove that he acted without authority. It is also presumed that the seal of the corporation was rightfully affixed to any deed or instrument on which it appears. Evans v. Lee, 11 Nev. 194; Bowers v. Hechtman, 45 Minn. 238, 47 N.W. 792; Thompson on Corp., § 5106, and cases cited in note 5.

It is said in Kelly v. Calhoun, 95 U.S. 710, 24 L.Ed. 544, in speaking of a deed executed by a railroad company to which objection was made: "Instruments like this should be construed, if it can be reasonably done, ut res magis valeat quam pereat. It should be the aim of courts, in cases like this, to preserve and not to destroy. Sir Matthew Hale said they should be astute to find means to make acts effectual according to the honest intent of the parties. Roe v. Tranmarr, Willes, 682."

It is contended, also, by appellants, that the record of this deed does not sufficiently show that the seal indicated in the record by the word "seal" was the corporate seal. It is reasonable to presume that the seal so indicated was the proper seal of the company, and the one referred to in the deed itself, and in the certificate of acknowledgment. The testatum clause of the deed stated that the company had caused their corporate seal to be affixed. The secretary signed and attested the deed. The certificate of acknowledgment set forth that the seal was affixed by the authority of the board of directors. The record shows that there was a seal upon the instrument, but it does not describe it as the seal of the corporation.

The accuracy of the copy or description of a seal entered upon a public record depends largely upon the skill and intelligence of the officer who copies the instrument, and extreme particularity in regard to the manner in which this part of his duty should be performed would oftener work hardship than promote the ends of justice. We are not disposed to lay down a rule of this character.

The deed in question was executed and recorded more than forty years before the trial of this cause, and its validity is not shown to have been denied by the railroad company. Upon a faithful reading of the whole instrument from its commencement to its end, we think it clear that it was well executed, and that it was properly admitted in evidence.

It is next claimed that the court erred in permitting the appellee to introduce in evidence the record of a power of attorney executed by Emily Brockway, Lathrop Brockway, the husband of the said Emily, Elizabeth J. Norton, and Sarah Pomeroy, to Henry P. Norton, authorizing the latter as their agent and attorney to sell and convey certain lands in Allen county, Indiana, and also in admitting in evidence a deed made to the appellee by the said Henry J. Norton as such agent and attorney, and on his own behalf.

No defect in the power of attorney is pointed out, and we can discover none. It is objected that the deed executed by Henry P. Norton as the agent and attorney of Emily Brockway, Elizabeth J. Norton, and Sarah Pomeroy is void as to the said Emily Brockway, and as to all the other parties named as principals and grantors therein, because of the omission of the name of Lathrop Brockway, the husband of Emily Brockway, in the granting clause, and in the signatures.

At the time of these transactions a married woman was authorized by statute in this State to join with her husband in the execution of a power of attorney for the conveyance of lands situated in Indiana. R. S. 1853, p. 232, § 3369 Burns 1894.

The power of attorney executed by Emily Brockway and her husband, to Henry P. Norton, was in due form, and conferred upon the attorney and agent, full and effectual authority to sell and convey the lands described. It declared that the said Henry P. Norton was to act for them, and in their names, place, and stead, to sell and convey the lands described, and to execute and deliver full and complete conveyance thereof. It gave to the attorney and agent, power and authority to do and perform all and every act and thing whatever requisite and necessary to be done in and about the premises; and it ratified and confirmed all that the said agent and attorney should lawfully do. This power of attorney was properly acknowledged by Brockway and his wife, and by the other parties to it, and it was duly recorded in the office of the recorder of Allen county.

In pursuance of the power so conferred, the agent and attorney sold the lands of the wife described in the instrument, for a valuable consideration, which was received by him as the agent of the husband and wife; a deed was executed by the donee of the power in the name of the wife, and as her agent, but the name of the husband, Lathrop Brockway, was not inserted in, or subscribed to the deed by the agent, as it should have been. It should be observed that there was nothing in the power of attorney prescribing the form or manner of the conveyance to be executed by the agent. It is evident that there was here an imperfect execution of a power.

In this State a married woman could convey or encumber her lands only by deed in which her husband joined. Her separate deed was absolutely void. Baxter v. Bodkin, 25 Ind. 172; Stevens v. Parish, 29 Ind. 260; Cook v. Walling, 117 Ind. 9, 2 L. R....