McAllen v. Woodcock

• Decision Date: 31 May 1875
• Citation: 60 Mo. 174
• Parties: JOHN MCALLEN, et al., Respondents, v. CEPHAS P. WOODCOCK, Appellant.
• Court: Missouri Supreme Court

60 Mo. 174

JOHN MCALLEN, et al., Respondents,

v.CEPHAS P. WOODCOCK, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Buchanan Circuit Court.

B. Loan, for Appellant.

A. H. Vories, for Respondents.

NAPTON, Judge, delivered the opinion of the court.

This was an ejectment, brought by the trustees of “The North Prairie Farmers' Institute” to record a tract of land in Andrew county.

The petition is in the usual form. The defendant denied that there was any such corporation as the “North Prairie Farmers' Institute,” and alleges that said corporation, created by an act of the General Assembly in 18--, had ceased to exist by reason of the failure of the stock-holders to elect trustees, etc., for ten years prior to the institution of this suit. The answer denies that McAllen, etc., are trustees or have been since 1863. The answer further denies that plaintiffs are the owners or entitled to the possession of the real estate sued for. The answer further denies that this suit is brought by the real parties in interest.

A replication was filed to this answer. The case was removed to Buchanan county where the court found for plaintiffs.

The bill of exceptions showed that James Duncan, one of the plaintiffs, appeared in court and asked the court to dismiss said cause, so far as it related to him; that the suit was commenced without his knowledge and against his consent. But the other plaintiffs objected to this and insisted on their right to use his name, and then gave a bond to indemnify him against costs, and the court thereupon refused to dismiss the suit, so far as Duncan was concerned.

Subsequently, the only dispute seems to have been whether the plaintiffs were successors of the original trustees. Various records of the board were read to establish this. The plaintiffs, it may be here observed, are John McCallon (or McAllen), William Wade, James Duncan, Miles Haile and Daniel C. Thomas. Wm. K. Debord, a witness for plaintiff, produced a book alleged to be a record of the proceedings of the corporation, and stated that the book had been in the custody of the secretary of the association, until the secretary moved to Nebraska, and in possession of himself since. A deed from Singleton and wife to Wm. L. Butts, Josiah B. Depart, William Wade, Wm. K. Debord and John B. Colton, trustees of the North Prairie Farmers' Institute and their successors in office, for the land in controversy, was read. Objections were made to said deed because no title was shown in Singleton, nor possession, at the date of said deed. These objections were overruled and the deed read. The deed is an ordinary conveyance of three acres of land, described by metes and bounds, dated March, 1859.

This witness Debord further stated that there was a subscription list by the members of the board, which he supposed was in possession of defendant, as he was collector and treasurer of the board in 1859, and recognized the above grantees as trustees in 1859. Here the defendant was summoned as a witness, who stated that he did not have the subscription list, as stated by witness Debord; that if he ever had anything of the kind, it was a mere memorandum of the subscription.

The witness Debord then proceeded to state that Collier, Hays, Haile, Tate, McAllen, Singleton, etc. were subscribers to the association at twenty dollars a share. Defendant attended the meetings of the trustees, of which he was treasurer and D. C. Thomas was generally secretary. A meeting was held in 1863, when witness acted as chairman and Thomas as secretary. Duncan, Wade, Thomas, McAllen and Haile were appointed trustees. Defendant was at the meeting.

There was some dispute there as to Debord's signature to the minutes of this meeting in 1863; but it is not material whether Debord signed his name, or the secretary for him.

The plaintiffs then read from the book heretofore referred to and introduced by the witness Debord, the following entry: “North Prairie Farmers' Institute, December 3, 1859.--At a regular meeting of the stockholders of the above named institute, on the day above mentioned, Wm. L. Butts being chairman by virtue of a former election, the following proceedings were had: Daniel C. Thomas was appointed secretary; on motion of Wm. L. Butts, Wm. McAllen was appointed secretary. On motion of Wm. L. Butts, Wm. McAllen was appointed one of the trustees, William K. Debord was elected another trustee. On motion of D. C. Thomas, Wm. L. Butts was elected another trustee. On motion of Hays, Dysart was elected another trustee, and on motion of McAllen, George Morriss was also elected a trustee.” A great number of objections were made to this evidence, but overruled.

The plaintiffs then read the following entry: “North Prairie Farmers' Institute, December, 1859. At a meeting of the Board of Trustees, held at the institute on the day of the above date, William L. Butts, Wm. McAllen, Wm. K. Debord and George Morriss being present, Wm. K. Debord moved that Wm. L. Butts be appointed president, and Daniel C. Thomas was elected secretary; Cephas P. Woodcock was elected treasurer. Cephas P. Woodcock was appointed to superintend the repair of the building. Cephas P. Woodcock was further ordered to complete the well fit for use. On motion the meeting was adjourned sine die.--Wm. L. Butts, president; D. C. Thomas, secretary.” Similar objections were made to this entry.

The plaintiffs then read the following: “On the 11th day of December, 1859, the trustees of the North Prairie Farmers' Institute met according to notice by said trustees, for the purpose of transacting business for said Institute. On the annual settlement the Board of Trustees find in treasurer's hands, $2,593.27; amount paid out by said treasurer, $2,571 01; balance remaining in treasurer's hands, $22.26; amount paid treasurer on commission, $129.66. We find in the hands of treasurer, in school bill for collection, remaining $144.73. We find in the hands of the treasurer in notes for collection, $134.45. Amount remaining uncollected on schoolhouse stock, $36.50; due, $338.07. On motion the meeting adjourned sine die.--W. L. Butts, president; Dan. C. Thomas, secretary.

The plaintiffs then read the following entry: “The stockholders of said institute met on the 1st Saturday in December, 1860, organized by calling W. L. Butts to the chair, and Samuel Hunter being chosen as secretary pro tem. On motion, the stockholders elected as trustees the following named persons, to-wit: W. T. McAllen, W. K. Debord, W. L. Butts, Miles Haile, John C. McAllen, for the ensuing year. On motion, the meeting adjourned.--W. L. Butts, president.--The above named board elected W. L. Butts president for the ensuing year. W. L. Butts, president.

The plaintiffs then read an entry in said book as follows: “North Prairie Farmers' Institute. Board of Trustees met on the 14th of December, 1860, for the purpose of transacting business. North Prairie Farmers' Institute, Dr., to C. P. Woodcock, Treasurer. (Here follows an account, showing the treasurer in advance of $18.91.) Board of ...