Finch v. Ullmann
| Decision Date | 23 June 1891 |
| Parties | Finch et al., Appellants, v. Ullman |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. W. D. Hubbard, Judge.
Reversed and remanded.
B. U Massey and Ethelbert Ward for appellants.
(1) If the plaintiff shows prior possession as owner either in himself or his grantor, if it appears that defendants hold under the same grantor, it is unnecessary to go further as to proof of title. Miller v. Hardin, 64 Mo. 545; Smith v. Lindsey, 89 Mo. 76; Cummings v Powell, 97 Mo. 524; Charles v. Patch, 87 Mo 450. (2) The Springfield Hotel Company was a corporation de facto; because, first, there was at the time in Missouri a general law under which such a corporation might have been formed, and, second, an attempt to form a corporation, and an actual performance of corporate acts, pursuant to the general law. 2 Morawetz, Priv. Corp. [2 Ed.] secs. 777 and 778; Wait Insolv. Corp., secs. 483 and 485; Thompson v. Candor, 60 Ill. 244. (3) The validity of the transfer of property by or to a corporation de facto cannot be questioned in a collateral proceeding. 2 Morawetz Priv. Corp. [2 Ed.] secs. 753, 707, 710, 711; Wait, Insolv. Corp., sec. 22; Society Perun v. Cleveland, 43 Ohio St. 481; Hutson v. Green Hall Sem., 113 Ill. 618; Thompson v. Candor, 60 Ill. 244; Hovelman v. Railroad, 79 Mo. 639. (4) This rule is not based on estoppel which governs many of the Missouri cases, but on the requirements of public policy that the security of titles be not impaired. 2 Morawetz, Priv. Corp. [2 Ed.] secs. 692, 652 and 678. (5) The deed of the Springfield Hotel Company to Sheppard, trustee, dated September 6, 1871, recorded in book 1, page 327, was properly signed and acknowledged, and conveyed the interest of said company to said trustee. Shewalter v. Pirner, 55 Mo. 218; City of Kansas v. Railroad, 77 Mo. 180; Eppright v. Nickerson, 78 Mo. 486. (6) "Parol evidence may be resorted to to identify the land as existing on the ground, in cases where its location is called in question." Orr v. How, 55 Mo. 329; Charles v. Patch, 87 Mo. 467, and the authorities there cited. "The question whether the deed under which plaintiff claimed covered the strip in controversy was held to be one of fact for the jury." Barry v. Otto, 56 Mo. 177. The testimony of Youngblood, McAfee, Delaney and Ferguson was proper evidence to go to the jury to determine the original plat of the town of Springfield. Stephens' Dig. Ev. [2 Am. Ed.] secs. 65 and 67; 1 Green. Ev. [14 Ed.] sec. 509, p. 601; Wood's Prac. Ev., sec. 6, p. 11, et seq. The plat exhibits A, B, C and D were proper evidence tending to locate the land sued for. Brewington v. Jenkins, 85 Mo. 57. (7) Defendants claimed the eighteen-inch strip by adverse possession alone. An actual possession of the lot to the east of this strip does not carry constructive possession of this strip when the defendants do not claim any deed title to the strip. Fugate v. Pierce, 49 Mo. 441; Leper v. Barker, 68 Mo. 403. Where premises are vacant constructive possession will follow the true title. Crispen v. Hannavan, 50 Mo. 536, and authorities there cited. Possession under mistake of lines will not work a disseizin in favor of the one so possessed. Houx v. Batteen, 68 Mo. 84; Tamm v. Kellogg, 49 Mo. 118; Kincaid v. Dormey, 51 Mo. 551; West v. Railroad, 59 Mo. 510. The mere fact that the next door groceryman piled trash and old boxes and barrels on the vacant lot of Ullman, and that some of the salt barrels at one time were piled against the hotel wall, and that at one time a circus bill board was erected across the empty lot and rested its ends for support against the sides of the hotel and the grocery store, does not constitute adverse possession in law of this eighteen-inch strip of ground. Turner v. Hall, 60 Mo. 275; Crispen v. Hannavan, 50 Mo. 536; Fugate v. Pierce, 49 Mo. 441; Musick v. Barney, 49 Mo. 474; Campbell v. Gas Co., 84 Mo. 374; Key v. Jennings, 66 Mo. 367. (9) "A demurrer to evidence admits everything which the testimony conduces to prove, even though only in a slight degree; and, in passing upon the demurrer, the court will make every inference of fact in favor of the party offering the evidence which the evidence warrants, and which the jury might, with any degree of propriety, have inferred." Wilson v. Board, 63 Mo. 137; Buesching v. Gas Co., 73 Mo. 219; Noeninger v. Vogt, 88 Mo. 589; Fisher v. Railroad, 23 Mo.App. 201. "But the court is not at liberty to make inferences of fact in favor of the demurrant, to countervail or overthrow either presumptions of law or inferences of fact in favor of the other party; that would be clearly usurping the province of the jury." Buesching v. Gas Co., 73 Mo. 231; Feurt v. Brown, 23 Mo.App. 332. "To authorize or render permissible such an instruction, the evidence must not be merely weak, but in fact there must be no evidence." Routsong v. Railroad, 45 Mo. 237. "If there is any evidence, however slight it may be, or whether direct or inferential, it must go to the jury, who are the sole judges of its weight and authority." Charles v. Patch, 87 Mo. 463; 1 Pat. Mo. Dig., secs. 67, 68, 77, 78, p. 322; 2 Stark's Mo. Dig., sec. 307, p. 237. "The right of trial by jury as heretofore enjoyed shall remain inviolate." Const. Mo., art. 22, sec. 28.
Goode & Cravens and H. E. Howell for respondent.
(1) The corporate existence of a corporation in this state dates from the filing of a copy of the articles of association or corporation with the secretary of state, and, there being no evidence that the Springfield Hotel Company ever so filed a copy of its articles of association, it has never had a corporate existence, and could not be a legal grantor or grantee in a deed, and the deeds in evidence to it and from it passed no title and are void. Hurt v. Salisbury, 55 Mo. 311; Richardson v. Pitts, 71 Mo. 128; Mining Co. v. Richards, 95 Mo. 106; Douthitt v. Stinson, 63 Mo. 268; "Corporations," 4 Am. & Eng. Encyc. of Law, par. 8, p. 107; Morawetz on Corp. [2 Ed.] sec. 746; Gent v. Ins. Co., 107 Ill. 652; 6 Am. & Eng. Corp. Cas. 588. The filing with the secretary of state was a prerequisite to corporate existence. Smith v. Warden, 86 Mo. 382. The Springfield Hotel Company was neither de facto nor de jure a corporation. Something more is necessary to make even a de facto corporation than a body of men getting together and calling themselves a company. Hart v. Salisbury, 55 Mo. 310; Mfg. Co. v. Richmond, 14 Mo.App. 595; Railroad v. Abell, 17 Mo.App. 645; Gent v. Ins. Co., 107 Ill 652; 6 Am. & Eng. Corp. Cas. 588. (2) The quitclaim deed of Dade to Crenshaw, dated August 17, 1872, passed no title, as there is no evidence of any title in Dade, and it passed no possession or right of possession, as Dade was not in possession at the date of said deed (see admission at the end of bill of exceptions), but had abandoned his possession when he made his deed to the Springfield Hotel Company, dated March 28, 1870, and so said deed to Crenshaw cannot aid plaintiffs in this case. Matney v. Graham, 59 Mo. 190; Fellows v. Wise, 49 Mo. 350; Bledsoe v. Sims, 53 Mo. 305; Hunt v. Railroad, 75 Mo. 252; Prior v. Scott, 87 Mo. 303. It devolved upon the plaintiffs to show that Dade had not abandoned his possession when he made the deed to Crenshaw. Alexander v. Campbell, 74 Mo. 142. When a plaintiff relies on his title, deduced from a common source, and does not introduce evidence to show such common source ever held the title, and when the evidence also shows that the alleged common source was not in possession of the premises at the time he made the conveyance under which plaintiffs claim, the plaintiffs have not made out a case. Matney v. Graham, 59 Mo. 190; Fellows v. Wise, 49 Mo. 350; Bledsoe v. Sims, 53 Mo. 305; Hunt v. Railroad, 75 Mo. 252; Prior v. Scott, 87 Mo. 303. (3) The plaintiffs must recover on the strength of their own title, and there can be no common source of title when the answer is a general denial and defendant claims title under the statute of limitation. Foster v. Evans, 51 Mo. 39; Charles v. Patch, 87 Mo. 450; Prior v. Scott, 87 Mo. 303; Miller v. Hardin, 64 Mo. 545. Even the rule as to plaintiff recovering on prior possession under claim of title is limited to mere intruders or trespassers. Prior v. Scott, 87 Mo. 309. (4) While the identification of the land was a question of fact for the jury, yet whether there was any competent evidence to prove it, was for the court to determine on the demurrer to the evidence. The pretended copies of plats in evidence cannot establish a "legal plat or record." Brewington v. Jenkins, 85 Mo. 57.
This is an action in ejectment for a strip of land in lots 31 and 34, block 2, of the city of Springfield, fronting eighteen and three-fourths inches on College street, and running back two hundred and thirty-five 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: First, 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 one hundred and twenty feet on said College street, and running back to the south line of said lot 34. Second. 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 que trust named therein. Third. A deed from Sheppard, trustee, under said deed of trust, dated September 9, 1872, conveying the same property to Crenshaw, Keet Doling, Robertson and Jones. Fourth. Intermediate deeds from these parties down to plai...
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