Holland Land and Loan Co. v. Holland

• Citation: 298 S.W. 39,317 Mo. 951
• Decision Date: 30 July 1927
• Docket Number: 26823
• Parties: Holland Land and Loan Company, Appellant, v. Bertonia A. Holland
• Court: United States State Supreme Court of Missouri

298 S.W. 39

317 Mo. 951

Holland Land and Loan Company, Appellant, v. Bertonia A. Holland

No. 26823

Supreme Court of Missouri

July 30, 1927

Motion for Rehearing Denied September 16, 1927.

Transferred from Springfield Court of Appeals.

Affirmed.

John T Sturgis for appellant.

(1) The defendant's equitable answer made this case triable in equity and this court will review the evidence, de novo, as well as the questions of law. Lewis v Barnes, 272 Mo. 377; Claybrook v. Saulsberry, 204 S.W. 60. (2) This is not a suit for damages as for tort or conversion. It is a suit for money had and received by defendant which rightfully belongs to the plaintiff. One who sells and thereby deprives another of his property, real or personal, and receives the proceeds, can be held for the money so received in an action for money had and received. Ordinarily one cannot sell and convey land not his own and the owner is usually not injured by such conveyance. But where the real owner's title is not of record the one holding the apparent title may sell and convey a good title to an innocent purchaser. In such case the apparent owner even though selling in good faith receives money for property not his own and must account for same to the real owner. 39 Cyc. 176, 177; Morse v. Bates, 99 Mo.App. 560; Picotte v. Mills, 200 Mo.App. 127; Waverly Timber Co. v. Cooperage Co., 112 Mo. 389; Tamm v Kellogg, 49 Mo. 118; 27 Cyc. 854, 861; McAllister v. Reel, 53 Mo.App. 81. (3) When the plaintiff is only suing for the money received by defendant for property belonging to plaintiff the question of defendant's knowledge and intention of wrongdoing is of no importance. The fact that defendant acted under a bona-fide claim of right makes no difference. The gist of the action is that defendant has money which properly should go to the plaintiff. Waverly Timber Co. v. Cooperage Co., 112 Mo. 389; Picotte v. Mills, 200 Mo.App. 127; Tamm v. Kellogg, 49 Mo. 118. (4) The defendant alleges that the deed from C. B. Holland to Holland Banking Company was not delivered. The burden was on defendant to prove the nondelivery and no such evidence was produced. Pitts v. Sheriff, 108 Mo. 110 (a) That a deed has been acknowledged and recorded at the time offered in evidence is prima-facie proof of delivery. 13 Cyc. 734, 567; McReynolds v. Grubb, 150 Mo. 332, 362; Llewellyn v. Butler, 186 Mo.App. 593. (b) The words written at the close of the deed and part thereof "Signed, Sealed and Delivered in the Presence of T. J. Gideon," is prima-facie proof of delivery. Hill v. McNichol, 80 Me. 209. (c) Where a deed, as here, is properly acknowledged, that is proof of its due execution, and proof of execution raises a presumption of delivery. 13 Cyc. 730-731; Fontaine v. Boatmen's Savings Inst., 55 Mo. 561. (d) The fact that the deed in question was found in the possession of the grantee, Holland Banking Company, from which it was obtained and put of record is proof of delivery. 13 Cyc. 563; Allen v. DeGroddt, 105 Mo. 456; Elsea v. Smith, 273 Mo. 410; Green v. Yarnell, 6 Mo. 326; Pitts v. Sheriff, 108 Mo. 115; Scott v. Scott, 95 Mo. 308; Rogers v. Cary, 47 Mo. 234. In Pitts v. Sheriff, supra, the court said: "Where a deed has been executed and acknowledged the possession of it by the grantee is presumptive evidence of its delivery." (e) The contract between T. B. Holland and W. B. Sanford of August, 1911, for sale of bank stock specifically recognizes the bank's ownership of an interest (one-third) in this Olive Street property. And that interest came only through the execution and delivery of the C. B. Holland deed. (5) The contract of August 19, 1911, between T. B. Holland and W. B. Sanford as individuals relating to sale of bank stock, even if covering the land in dispute, which we deny, cannot have the effect of divesting the title of the bank and conveying same to T. B. Holland, though Sanford thereby became the owner of the large majority of the stock. A corporation acts by authority of its board of directors and through its officers acting as such when duly authorized. No stockholder, however large his holdings may be, can act for or bind the corporation by his contract. 7 R. C. L. 530, 623, especially as to its land, p. 642; Jones v. Williams, 139 Mo. 24, 71; Hill v. Rich Hill Coal Co., 119 Mo. 29; Guaranty Mortgage Co. v. Delmar Realty Co., 254 S.W. 100; 14 A, C. J. 361. A contract between the stockholders to sell stock cannot be construed to be a contract of the corporation to sell its land unless the corporation ratifies same. Lead & Zine Co. v. Land Co., 251 Mo. 735. The Holland-Sanford contract for sale of bank stock, even if valid, does not cover the land in dispute -- the fifty-foot lot with the barn on it. It purports to reserve to T. B. Holland, "the bank's entire interest in the Olive Street property known as the Townsend-Crawford property." What property that is must be left to extrinsic evidence. And both parties so recognized and introduced evidence to identify the property. Plaintiff contends that the property referred to as reserved to Holland is the seventy-three-foot vacant lot on Olive Street east of the one in controversy, since it is shown that in 1905 T. B. Holland obtained Townsend's interest in same by deed through McGregor and thereafter the property in controversy was severed from the vacant property and treated as a separate lot for taxation, the payment of rents, etc. The parties to the contract themselves placed such construction upon this contract, as covering only the vacant lot, in every way and by unequivocal acts. The court will follow the construction placed on the contract by the parties themselves. 9 Cyc. 588; Scott v. Scott, 95 Mo. 318; Patterson v. Camden, 25 Mo. 22; White v. Herringhausen, 275 Mo. 687; City of California v. Burke, 239 S.W. 832.

Mann & Mann and W. D. Tatlow for respondent.

(1) This is an action for money had and received, hence, an action at law and not in equity, and a general finding, as here, in favor of the respondent, if there is any evidence tending to support the finding is conclusive on this court. Brewer v. Dunham, 209 S.W. 573. Although it is an action at law, so far as the procedure is concerned, as to the substantive law it is an action in equity, or rather, it is controlled and governed by equitable principles, for the reason that it has been many times decided in this State that in order for the plaintiff to recover in such an action, it is not sufficient for it to show a mere legal title, but he is required to show in addition thereto, that the defendant has received money which in equity and good conscience, she ought to pay to the plaintiff. Such a showing is absolutely necessary to the right of recovery. Richardson v Moffett-West Drug Co., 92 Mo.App. 515; Clifford Banking Co. v. Donovan Comm. Co., 195 Mo. 239; Johnson-Brinkman Co. v. Central Bank, 116 Mo. 558; Whitecotton v. Wilson, 197 S.W. 168; Stockman v. Allen, 160 Mo.App. 229. (2) The written contract between T. B. Holland and W. B. Sanford, they being at the time the owners of all the stock of the Holland Banking Company, by which Holland sold to Sanford his stock in the bank and all the real estate of the bank was disposed of thereby partly to Holland and Sanford jointly and partly to T. B. Holland individually, is conclusive against the right of the appellant to recover, as this contract gives the property in dispute to Holland, and is sufficient to convey the equitable and beneficial interest, even though not sufficient to convey the legal title to the property and prevents the recovery by the plaintiff, contrary to the contract in an action for money had and received for the proceeds of such property under the authorities supra. This is so, even though the contract did not technically bind the bank for the reason that no one but the bank itself could raise the objection. The bank made no such objection, but recognized, ratified and confirmed the contract and never afterwards made any claim to the property and for the further reason that, while as a general rule a corporation is a separate entity from the stockholders, this is a mere legal fiction, and courts of equity will look beyond, and when equity requires it, will consider such entity as identical with the constituent members that compose it. United States v. United States Shoe Co., 234 F. 141; Smith v. Moore, 119 F. 689; McCaskle v. United States, 216 U.S. 405; Cardo v. Adams, 231 F. 967; Sebree v. Cassville Railroad Co., 212 S.W. 18. It has been very generally held that there may be a division of the property of a corporation among stockholders without the formality of a resolution of the board of directors declaring a dividend. Spencer v. Lowe, 198 F. 961; Southwestern Co. v. Martin, 57 Ark. 355; Central of Georgia Railroad v. Central Trust Co., 135 Ga. 472; Grats & Company v. Calvert, 142 P. 569; Ratley v. Clendenan, 232 F. 61; Smith v. Moore, 199 F. 689. (3) The presumption of the delivery of a deed, arising from the possession thereof by the grantee and the recording of same, has no application to the deed of C. B. Holland to the bank, which conveyed a number of tracts, that T. B. Holland, as the devisee of C. B. Holland, conveyed to other parties as the owner of the property, which can be accounted for only on the theory that the bank was making no claim to the property (in other words, the paper was not a deed) or on the theory that T. B. Holland was, in fact, the Holland Bank. If so, the question of delivery turns upon his intention and his acts show that he did not intend the delivery of the deed. In other words, he did not intend to accept it. The question of delivery, however, or nondelivery of the deed, is not important, except as an answer to appellant's legal title theory, which, in its last...