Littelle v. Creek Lumber Co.

• Decision Date: 20 March 1911
• Docket Number: 14,657
• Citation: Littelle v. Creek Lumber Co., 54 So. 841, 99 Miss. 241 (Miss. 1911)
• Court: Mississippi Supreme Court
• Parties: T. A. LITTELLE v. CREEK LUMBER COMPANY

54 So. 841

99 Miss. 241

T. A. LITTELLE v. CREEK LUMBER COMPANY

No. 14,657

Supreme Court of Mississippi

March 20, 1911

APPEAL from the circuit court of Forrest county, HON.W. H. COOK Judge.

Ejectment by T. A. Littelle against Creek Lumber Company. From a judgment for defendant, the plaintiff appeals.

The appellee sold a lot to one Steadman, who afterwards conveyed to appellant, Littelle. Appellant claiming certain tenement houses on the land, which appellee asserts were to be reserved, an action of ejectment was instituted by appellant against appellee. On the trial, appellant offered in evidence the deed executed by appellee to Steadman; but same, not being under the corporate seal of the appellee, a corporation, was excluded on objection of appellee, and a peremptory instruction given to find for appellee.

Affirmed.

Currie & Currie, for appellant.

We put this proposition to counsel for appellee, and call on them to answer it. Under our Code chapter on corporations, could a corporation be legally required and compelled to adopt and have a seal? Section 901 simply provides: "May have a corporate seal."

Our intention is that this provision is merely directory, and that a corporation organized and chartered under our chapter may or may not as it elects adopt and have a seal.

Under the common law before the use of the seal was abolished and before the enactment of our statutes relating to the use of the seal, such a person could have required by legal proceedings, or absolutely compelled by order of court, the adoption of a seal and the affixing of it to the supposed deed, but at that time a crooked mark, flourish of the pen or scroll--anything most--would have complied with the order.

Not only has it been the general and uniform trend of legislation and the decisions of courts to get away from the use of the seal, but the general business custom has been to dispense with them, and we dare say our state has in it many deeds to land executed by corporations which do not bear the private corporate seal, and our statutes should be held directory on the grounds of public policy.

In every single case in our state where a question has been before our court, since the Code of 1880 went into effect, so far as we have been able to ascertain, involving the necessity of the use of the seal, the court has decided against it.

In Lumber Company v. Cain, 70 Miss. 628, the court held that a corporation could convey its property without the use of its seal.

In Brown v. British Company, 86 Miss. 388, the court held that the written appointment of a substituted trustee in a deed of trust to sell land in which a corporation was beneficiary need not be under seal.

In the case of Alice McIver v. J. V. Abernathy et al., 66 Miss. 79, the court held that a conveyance of the land of an incorporated bank executed by its officers, where the purchase money is paid, passes the equitable title, without the use of a corporate seal.

N. C. &amp C. E. Hill, for appellee.

We respectfully call the court's attention to the case of Gibbs v. McGuire, 76 Miss. 646, which was an action of ejectment. The plaintiff in this case, in proving his chain of title, introduced a deed not under seal. The deed was executed by a private individual in the state of Texas under whose laws the deed of a private individual required no seal, about nine months before the Code of 1880, which abolished seals as to individuals, went into effect. Objection was made by the defendant to the introduction of the deed and the objection was sustained. We call the attention of the court to the fact that in this case the statute abolishing seals as to individuals had already been enacted, but the Code had not yet gone into effect. Yet so strict was the law in its requirements of the individual seal that the court held the deed in question without the seal absolutely void and plaintiff failed to sustain its action of ejectment.

We are unable to find among the numerous authorities cited on this question any state decision which dispenses with the use of the seal in the conveyance of real estate by a corporation, especially in an action of ejectment where a complete legal title is necessary to sustain the action. We find plenty of authorities showing the necessity for the use of the seal, but will not set the decisions out here at length. For cases in point see American Digest, Century Edition, vol. 12, columns 1828 and 1829, section 1781, showing decisions from numerous states requiring the use of the seal by a corporation in the conveyance of its real estate. Also the following well-known authorities on corporations: Cook on Stock and Stock-Holders and Corporation Law, 3d Ed., vol. 2, §§ 721-722, and Marshall on Corporations, p. 240 et seq. Mr. Marshall is a recognized authority on corporations and this text is the one used in our own state university. Twice does this author say that a conveyance of real estate by a corporation must be under the corporate seal.

The other errors assigned by appellant cannot be considered in this case. The only question to be decided here is whether or not the corporate seal is essential to the validity of a deed by a corporation. It has been repeatedly held in this state that in order to sustain an action of ejectment plaintiff must rely on a complete and perfect legal title. Thompson v. Wheatly, 5 Smed. & M. 499; Wolfe v. Dowell, 13 Ib. 103; Torrance v. Betsy, 30 Miss. 129; Heard v. Baird, 40 Ib. 793; Lockhart v. Camfield, 48 Ib. 470; Gibbs v. McGuire, 70 Miss. 646.

OPINION

WHITFIELD, C.

The question upon which the decision of this case pivots is whether a deed to land, made by a private corporation without affixing its corporate seal thereto, is valid in an action of ejectment at law. It was undoubtedly the rule at common law that a private corporation could not convey its real estate, except under its corporate seal. In Perry v. Price, 1 Mo. 664, 14 Am. Dec. 316, the court said: "Those things do not exist in this case, nor does the approbation of seven directors afterwards, ratifying the execution of the writing, as they call it, make the matter any better. They only ratify the execution of the writing. This ratification does not make the instrument a deed, unless it were a deed before. It does not make a smooth plaster of wax a sealed impression. These things, we know, are technicalities; but it is to be remembered that a corporation only exists by technical fiction, and all it does must be technical, and, in general, can only be known by using signs, which the law has given it power to use, to...