Mo. Valley Land Co. v. Bushnell

• Decision Date: 26 March 1881
• Citation: 8 N.W. 389,11 Neb. 192
• Parties: MISSOURI VALLEY LAND CO. v. BUSHNELL.
• Court: Nebraska Supreme Court

11 Neb. 192

8 N.W. 389

MISSOURI VALLEY LAND CO.

v.BUSHNELL.

Supreme Court of Nebraska.

Filed March 26, 1881.

Appeal from Washington county.

L. W. Osborn and Ballard & Walton, for appellant.

Joy & Wright, for appellee.

LAKE, J.

The first objection made by appellant's counsel to the action of the district court is that “the demurrer to the amended petition asking a judgment for deficiency should have been sustained as to the defendant Pollock, he being only an assignee, and there being no privity of contract between him and the plaintiff.”

To this objection it may be answered-- First, that no such judgment is asked or rendered against the defendant Pollock; and, second, that even if such had been the prayer of the petition, it would have been no ground of demurrer. A demurrer to a petition only lies to the statement of facts constituting the supposed cause of action, not to the prayer for relief, which may be much in excess of what those facts warrant the court to grant. Here the demurrer is by both defendants, jointly and generally. In such case, if the petition state a cause of action against either of the defendants, the demurrer will be overruled as to both. This is a rule of practice which is well settled in this state. Dunn v. Gibson, 9 Neb. 513. We are not forced, however, to apply this rule; for, as we think, the facts alleged amply support the judgment which the court gave.

Under the second head of the appellant's brief it is contended that the demurrer should have been sustained as to the defendant Bushnell also. This point is aimed at the very root of the plaintiff's case, the ground taken being that, as shown by the petition, the contract for the sale of the lots to Bushnell having been made by an agent, and in the interest of the Sioux City & Pacific Railroad Company, was absolutely void, for the reason that this company was not authorized by its charter to hold or deal in real estate of this description. Admitting all that is claimed as to the want of authority on the part of this company by its charter to take or hold real estate, except for certain specified purposes, still the conclusion sought to be drawn therefrom does not follow. Authorities of the highest character are abundant to the effect that the appellants cannot successfully urge such incapacity, even if it existed, as a defence to an action upon this contract, through which they have acquired and enjoyed property rights in the lots in question. Bushnell clearly recognized the authority of his vendor by taking the contract; and he does not complain that he has not received all that it was contemplated he should under it.

In Nat. Bank v. Mathews, 8 Otto, 621, it is said that even “where a corporationis incompetent by its charter to take a title to real estate, a conveyance to it is not void, but only voidable, and the sovereign only can object. It is valid until assailed in a direct proceeding instituted for that purpose.” To the same effect are the following: Cowel v. Springs Co. 10 Otto, 55;Christian Union v. Yount, 11 Otto, 352;Am. Bible Society v. Marshall, 15 Ohio St. 537;Notoma Water & Mining Co. v. Clarkin, 14 Cal. 543.

In view of the concession made by the appellants, that the railroad company had power not only to acquire, by gift or purchase, such real estate as was necessary for the construction and operation of its road, but also to hold and control such...