Galveston Land & Imp. Co. v. Perkins

• Citation: 26 S.W. 256
• Parties: GALVESTON LAND & IMP. CO. v. PERKINS et al.
• Decision Date: 08 March 1894
• Court: Court of Appeals of Texas

26 S.W. 256

GALVESTON LAND & IMP. CO. v. PERKINS et al.

Court of Civil Appeals of Texas.

March 8, 1894.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Trespass to try title by the Galveston Land & Improvement Company against Alfred Perkins and others. Judgment for plaintiff for less than all the premises, and costs divided. Both sides appeal. Reversed.

Davidson & Minor, for plaintiff. Frank M. Spencer, for defendants.

WILLIAMS, J.

This suit was brought by appellant, alleging itself to be a corporation, to recover a block of land, a part of what is known as the "Denver Resurvey," in the city of Galveston. The defendants in the court below denied under oath the capacity of plaintiff, alleging that it was not duly incorporated, pleaded not guilty, and the statute of 10 years' limitation. The cause was tried before the judge, without jury, and the plea in abatement was overruled, and judgment was rendered for plaintiff for all of the land sued for, except seven lots, which were adjudged to the defendants under their plea of limitations. One-half the costs were adjudged against each party, no reason being given for such apportionment. The plaintiff perfected an appeal from the judgment, and the defendants have assigned errors upon the part of the judgment against them.

The ruling of the court upon the plea in abatement is not questioned by any assignment, but the point is made by appellees that, from the evidence adduced by the plaintiff as to its incorporation, it appears that it was not competent to hold title to the land sued for, and should not therefore have recovered any part of it. The evidence of appellant upon this point is thus stated in the brief of its counsel: "(1) A copy of its articles of incorporation from the office of the secretary of the state of Texas, which was the only instrument to which appellees objected;" and (2) a "permit," duly authenticated, from the state of Texas to appellant, specifying the objects of its incorporation, and declaring that it "is entitled to, and is hereby granted, permission to carry on its business in this state, in accordance with the provisions of said act of April 3, 1889, for the term of ten years from the date thereof," said permit being dated February 29, 1890. The copy of the charter or articles of incorporation was attested on October 14, 1890, under the official signature of the secretary of state of the state of Texas, and under the seal of the state of Texas, "to be a true and correct copy of the articles of incorporation of the Galveston Land & Improvement Company, with the indorsements thereon, as now appears on file in this department." Said articles of incorporation show on their face that they were filed in the office of the secretary of state of Colorado on February 11, 1890; and a copy thereof, certified under the official signature of the secretary of the state of Colorado, and under the great seal of the state of Colorado, was filed in the department of the state of Texas on February 24, 1890. The charter specified the objects of the incorporation as follows, viz.: "To buy, sell, and otherwise, howsoever lawfully, to acquire and dispose of, and to own, and to possess, operate, and deal in, real estate in the city of Galveston, state of Texas, and elsewhere, and to build, contract, maintain, and operate railway lines and street railways, waterworks, electric light works, wharves, docks, and all other works which may tend to or be useful in the development or improvement of the property owned or to be owned by the said company or others, or the city or place where the operations of the company are carried on; to contract for the construction of, and to construct, own, sell, lease, and otherwise dispose of, houses and other buildings, and to lay out into lots and blocks, as it may deem fit, any property owned by it; to dedicate and lay out streets, alleys, roads, and to grade and improve the same; to transact a general real-estate commission business; and generally to engage in any and all lawful business not inconsistent with the laws of the state of Colorado, or the state where the said business may be carried on, or the United States of America; and to do any and all lawful acts and things necessary or useful to the full and complete exercise of the powers and carrying out of the objects hereinaforesaid, or that may be deemed advantageous to said company." The permit from the state of Texas to the appellant company, which was read in evidence without objection, is a certificate, dated February 24, 1890, duly authenticated by the signature of the secretary of the state of Texas, and under the seal of the state, to the effect "that the Galveston Land & Improvement Company, incorporated, under the laws of the state of Colorado, to do those things specified in its charter and just recited as the objects of its incorporation, and including the power to `buy, sell, and otherwise, howsoever lawfully, to acquire and dispose of, and to own, and to possess, operate, and deal in, real estate in the city of Galveston, state of Texas,' etc., has this day filed in this department a certified copy of its articles of incorporation in accordance with the requirements of an act of twenty-first legislature of the state of Texas approved April 3, 1889; and I further certify that said corporation has this day paid $275, the amount of the fee prescribed by said act; and I hereby declare that said corporation, having complied fully with the law, is entitled to, and is hereby granted, permission to carry on its business in this state in accordance with the provisions of said act of April 3, 1889, for the term of ten years from the date hereof, in accordance with the purposes herein specified." The point urged against this evidence is that one of the purposes for which the company was formed, and the power resulting therefrom, as mentioned in its charter, viz. to "buy, sell, and otherwise, howsoever lawfully, to acquire and dispose of, and to own, and to possess, operate, and deal in, real estate in the city of Galveston and elsewhere," were such as corporations were forbidden by the laws and policy of the state to pursue and exercise, and that, therefore, the plaintiff was not competent to take the title to real estate conveyed to it.

In the view we take of the case, it is unnecessary to decide whether or not under the law, as it existed when appellant filed its charter, the laws of this state permitted the formation of domestic corporations for the sole purpose of conducting a real-estate business, such as seems to be contemplated by the clause of the charter just quoted. We may remark, however, that we find no provision of the statute then in force which would authorize the creation of a corporation for such a purpose. It is also...