Marysville Inv. Co. v. Munson

• Decision Date: 11 October 1890
• Citation: 24 P. 977,44 Kan. 491
• Parties: THE MARYSVILLE INVESTMENT COMPANY v. HARRIET J. MUNSON et al
• Court: Kansas Supreme Court

24 P. 977

44 Kan. 491

THE MARYSVILLE INVESTMENT COMPANY v. HARRIET J. MUNSON et al

Supreme Court of Kansas

October 11, 1890

Error from Marshall District Court.

EJECTMENT. Judgment for the defendants, at the October term, 1889. The plaintiff Company brings the case to this court. The facts are stated in the opinion.

Judgment reversed and cause remanded for a new trial.

W. A Calderhead, A. E. Park, and Glass & Polack, for plaintiff in error.

Cal. T Mann, and E. Hutchinson, for defendants in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This is a proceeding to review the rulings and judgment of the district court of Marshall county, given in an action of ejectment, brought by the Marysville Investment Company against Harriet J. Munson, A. K. Munson, and J. D. Farwell, for the recovery of six lots in the town of Palmetto, now a part of the city of Marysville, in Marshall county, and also for damages in withholding the possession of the same. The greater part of the evidence offered by the plaintiff was excluded by the court, and these rulings are now assigned for error.

The plaintiff first offered in evidence a patent from the United States conveying to Joshua E. Clardy, probate judge of Marshall county, a quarter-section of land, "in trust for the several use and benefit of the occupants of the town-site of Palmetto, according to their respective interests." The tract so conveyed includes the land in controversy, which then formed the town-site of Palmetto, and now constitutes a part of the city of Marysville.

There was next offered in evidence a deed for the same real estate from Joshua E. Clardy, as judge of the probate court, to F. J. Marshall, A. Morell, W. S. Bruster, O. D. Prentiss, J. A. Quarles, R. Y. Shibley, J. P. Miller, R. A. West, A. S. Vaught, J. R. S. Alston, J. H. Myers, and James S. Magill, who are mentioned in the deed as "members of the Palmetto Town Company." The date of this conveyance is October 28, 1858. Testimony was offered tending to show that the town-site had been platted and subdivided into lots, blocks, streets and alleys.

The plaintiff offered in evidence a deed bearing date July 10, 1888, from the Palmetto Town Company to the Marysville Investment Company, purporting to convey the lots in controversy, and also a large number of other lots which had formed a part of the Palmetto town-site, and which had been entered by Probate Judge Clardy, in trust for the use and benefit of the occupants, but this deed was excluded by the court. The objection to the deed and the ground of its exclusion was, that prior to the time of its execution the town company had ceased to exist as a corporation and was without power to execute a conveyance of real estate; and of this ruling complaint is made.

The Palmetto Town Company was created by a special act of the territorial legislature of Kansas, which took effect on February 5, 1857. (Laws of 1857, p. 353.) There was no limitation in the act creating the corporation as to the period of its existence, but the general law relating to corporations which was then in force provided that where there was no limitation in the charter creating the corporation, it should only exist for a period of ten years. (Laws of 1855, p. 185.) Applying this limitation, the Palmetto Town Company ceased to exist as a corporation in February, 1867, more than twenty years prior to the date of the deed which it undertook to execute. It was then powerless to execute a conveyance, and the deed in question was open to the objection made by the defendants, and was properly excluded by the court. (Krutz v. Town Co., 20 Kan. 397.) The plaintiff then offered in evidence a deed dated December 28, 1888, executed by F. J. Marshall and his wife to the Marysville Investment Company, purporting to convey their interest in the quarter-section of land that had been entered as the Palmetto town-site, including all the lots remaining unsold, or which had been conveyed by the Palmetto Town Company. This deed was rejected by the court, as were a number of other deeds of like character and of or about the same date, executed by the grantees mentioned in the deed from Probate Judge Clardy, and who were described as members of the Palmetto Town Company. It was urged that the deeds were incompetent because the only title which the grantors had in the property was derived from the deed of Probate Judge Clardy to F. J. Marshall and others, and that as the deed of the probate judge does not purport to convey title to the Palmetto Town Company, but by its terms undertakes to convey to F. J. Marshall and others, as individuals, such conveyance was not in accordance with the rules and regulations prescribed by the legislature of the territory of Kansas relating to the entry and disposal of town-sites; and the court held that the deed from the probate judge was ineffectual to convey any title to the grantees named therein as individuals, and as they individually acquired no title by that deed, they could not as individuals convey any title to the Marysville Investment Company.

We think the court erred in holding the deed of the probate judge to F. J. Marshall and others, to be void, and also in excluding the individual deeds executed by these parties to the Marysville Investment Company. It is conceded that the Marysville Investment Company is a corporation having power to purchase and hold real estate, and also to sell and convey the same. It is further shown that F. J. Marshall and the other grantees named in the deed from the probate judge were actual occupants of the town-site of Palmetto at the time the deed was executed by the...