Hoene v. Pollak

• Decision Date: 16 June 1898
• Citation: 24 So. 349,118 Ala. 617
• Parties: HOENE v. POLLAK ET AL.
• Court: Alabama Supreme Court

24 So. 349

118 Ala. 617

HOENE v. POLLAK ET AL.

Supreme Court of Alabama

June 16, 1898

Appeal from chancery court, Jefferson county; Thomas Cobbs Chancellor.

Bill by Mary G. Hoene against I. Pollak and others. There was a decree for defendants, and complainant appeals. Affirmed.

Sam Will John and Tompkins & Troy, for appellant.

Alex T London and John London, for appellees.

BRICKELL C.J.

This appeal is taken from a final decree dismissing a bill filed by appellant, a married woman, and a majority shareholder in the Hoene, Warrior & Jefferson Coal Company, to set aside a deed executed in the name of said company by "I. Pollak President," by which all the property and assets of said corporation were conveyed to the Hoene Consolidated Coal &amp Iron Company, in consideration of $250,000 of its capital stock, to be issued to the shareholders of the former corporation in proportion to their respective holdings of stock therein. It is alleged in the bill that said Pollak was not the president of said Hoene, Warrior & Jefferson Coal Company, and was without any authority to execute said deed. It is further alleged that said deed was made without the knowledge or consent of appellant, and she disclaims all right to any of the stock in said Hoene Consolidated Company. She denies that she ever subscribed for any of said stock, or authorized any one to do so for her; and she avers that she did not receive any of the certificates for the same, and had never had possession or control thereof. The evidence shows that there was no formal subscription to the capital stock of the said Hoene Consolidated Coal & Iron Company. The stock was merely issued to those entitled thereto, in consequence of said conveyance, including 702 shares to appellant, and 10 shares to her husband, B. H. Frank Hoene. Appellant and her husband were both elected directors. The husband testified that he received the certificate for said 702 shares for his wife, and kept it with her other papers. He represented her in all the meetings of said Hoene Consolidated Company, and her said stock was voted affirmatively by him, for her, at the meeting called to authorize the issue of the bonds of said company, and the execution of the deed of trust upon its property, under which appellee claims. Appellant testified that her husband attended to all of her business, and we are satisfied from the evidence that he represented her in the matters of said two corporations with her full consent and authority. No formal authority is shown to have been conferred upon appellee to execute the deed from the Hoene, Warrior & Jefferson Company to the Hoene Consolidated Company; and there is conflict in the testimony as to whether he was then the president or even a shareholder in said former corporation. The evidence shows, however, that he had acted as president of said company, and that the deed was sent him by the husband of appellant and the general manager of said Hoene Jefferson & Warrior Coal Company for execution, and that possession of the property conveyed was delivered by said company to said Hoene Consolidated Company, under said deed.

No body corporate can appoint an agent to convey lands except by a vote of its directors or other managing board in whom the power to sell may be reposed by charter or generally by law ( Standifer v. Swann, 78 Ala. 88); this, by reason of the statute of frauds. "Notwithstanding the requirements of the statute of frauds declaring void certain contracts for the sale of land, unless evidenced by writing subscribed by the party to be charged, an equitable interest may be acquired in lands without any written transfer of title, by conduct or declaration of the owner which would create an estoppel in pais on his part. This rule applies as well to corporations as to natural persons. The fact that they must necessarily act through the instrumentality of agents, either immediate or intermediate, and can act in no other way, does not change the principle. And although an agent of a railroad or other corporation authorized to sell land or any interest in land can convey no legal title or freehold estate unless his authority to sell be in writing,...