Finch v. Ullmann

• Decision Date: 23 June 1891
• Citation: 105 Mo. 255,16 S.W. 863
• Parties: FINCH et al. v. ULLMANN.
• Court: Missouri Supreme Court

16 S.W. 863

105 Mo. 255

FINCH et al. v. ULLMANN.

Supreme Court of Missouri, Division No. 2.

June 23, 1891.

EJECTMENT — COMMON SOURCE OF TITLE — ADVERSE POSSESSION — CORPORATION'S DEED — PROOF OF INCORPORATION.

1. Where both parties in ejectment claim title from a common grantor, plaintiff is not bound to show title in him, and may show the common source by parol.

2. Where, without intention to claim beyond his line, one coterminous proprietor exercises acts of possession on the land of another, such possession will not be adverse.

3. Where, in ejectment, title is claimed under the deed of a corporation, it cannot be objected that it is not shown by the certificate of the secretary of state that the corporation had been legally incorporated.

Appeal from circuit court, Greene county; W. D. HUBBARD, Judge.

Ben. U. Massey and Ethelbert Ward, for appellants. Goode & Cravens and H. E. Howell, for respondent.

THOMAS, J.

This is an action in ejectment for a strip of land in lots 31 and 34, block 11, of the city of Springfield, fronting 18¾ inches on College street, and running back 235 feet. The petition is in the usual form, and the answer is a general denial. Judgment went against plaintiffs, and they appeal. Plaintiffs read in evidence deeds as follows: (1) A deed from D. C. Dade to the Springfield Hotel Company, dated March 26, 1870, conveying to it a strip of land off the west side of said lots 31 and 34, fronting 120 feet on said College street, and running back to the south line of said lot 34; (2) a deed of trust executed by the Springfield Hotel Company dated September 6, 1871, conveying the same property to Charles Sheppard, trustee, to secure the payment of the sum of $18,000 to the cestui qui trust named therein; (3) a deed from Sheppard, trustee, under said deed of trust, dated September 9, 1872, conveying the same property to Crenshaw, Kee, Doling, Robertson, and Jones; (4) intermediate deeds from these parties down to plaintiffs. Plaintiffs also read in evidence articles of incorporation of the Springfield Hotel Company dated March 14, 1870, which conformed in every particular to the requirements of sections 1 and 2, art. 8, c. 37, Wag. St. Mo., but no certificate from the secretary of state declaring this company a corporation was shown. By these articles of incorporation a board of directors of the company was appointed to manage its concerns. The evidence tended to show, further, that a hotel, known as the "Metropolitan," was erected on this property, the eastern wall of which was built 18¾ inches west from the eastern line thereof. On April 5, 1870, said Dade conveyed to Jones, Ullmann & Robertson a strip of land in said lots fronting 20 feet on said College street, and running back to the south line of said lot 34, and adjoining the property conveyed to the hotel company on the east. In 1877, this strip of 20 feet was sold in partition to Ludwig Ullmann, one of the defendants in this case. This constituted the title of defendants. The conveyance of Dade to Jones, Ullmann, and Robertson, and the partition sale to Ullmann were proved by parol without objection. It appears from the evidence that Dade, and those under whom he claimed title, had had possession of said lots 31 and 34 from 1853 to the time of the conveyances of 1870 to the hotel company and to Jones, Ullmann, and Robertson; that the hotel company and its grantees have had possession of the property conveyed by Dade to said company ever since 1870. As to the possession of the strip of 20 feet, Ullmann, being called as a witness by plaintiff, testified as follows: By defendants: "Question. I will ask you if you were not in possession of that same ground that Mr. Massey asked you about, more than ten years before the commencement of this suit, in March 28, 1887. Answer. Oh, yes; I was. Q. If you were in possession of that ground continuously from March 1, 1877? A. I was in possession. Q. And claiming it as your own? A. My own; yes, sir." By plaintiffs: "Q. How were you in possession? A. I owned the house and lot. I bought it. We bought it from Mr. Dade, and I controlled it for the others, — for Mr. Jones, who owned one-third, and Mr. Robertson, who owned one-third; and I controlled it for them, and a sale took place by partition, and I bought it under that sale. Q. How many feet did you buy? A. Twenty feet. I bought between the hotel and Mr. Dade's lot, where Mr. Ford is now. Q. How many feet is there between the hotel and Mr. Dade's lot? A. I believe there is twenty-one feet. Q. At the time you bought that lot at the partition sale, what was thereon the lot? A. There was a sign-board across the whole lot. Q. Was there anything else on the lot? A. There were some boxes there, and some old wagons and some salt barrels against the hotel side. There was a house on the back part of the alley 235 feet from the front. The bill-board reached from the wall of Dade's building to the hotel wall, and remained there continuously till I began to build, in 1882 or 1883. Q. Have you lived here continuously since 1877? A. No; I moved to Cleveland, Ohio, in 1881, and lived there six years. Q. How do you know that billboard was up there all the time? A. I came here once or twice, sometimes two or three times, a year, and I saw it there. Q. Are you positive now that...