Stoutimore v. Clark

• Citation: 70 Mo. 471
• Parties: STOUTIMORE v. CLARK et al., Appellants.
• Decision Date: 31 October 1879
• Court: Missouri Supreme Court

70 Mo. 471

STOUTIMORE

v.CLARK et al., Appellants.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Clay Circuit Court.--HON. GEO. W. DUNN, Judge.

AFFIRMED.

To prove the corporate organization and existence of the Missouri City Savings Bank, a certificate was offered in evidence signed by Robert G. Gilmer, President, and Hugh J. Robertson, Secretary, dated April 24, 1869. To the admission of this certificate in evidence defendant Chrisman objected on the ground that it was not under the seal of the president and secretary as required by law (Acts 1865-6, p. 62, §4), and on the ground that it was not ““acknowledged” by these officers, as required by the same act, but was merely stated to be “true and correct;” and on the further ground that it was not accompanied by the certificate of the Secretary of State, that the corporation had become duly organized, which certificate it is declared by the same act, (Ib. p. 21, § 2), “shall be taken by all courts of this State as evidence of the corporate existence” of the corporation. This objection was sustained by the circuit court, and the evidence was excluded. The other facts appear in the opinion.D. C. Allen and Saml. Hardwicke for appellant, Chrisman.

1. The doctrine of estoppel does not apply. It takes two to make an estoppel. There must be a party estopped, and a party in whose favor the estoppel works. Herman on Estoppel 40, 41. It is plain from the evidence that the Missouri City Savings Bank never had a corporate existence, nor a lawful organization on which corporate existence could be based. The circuit court in excluding the certificate dated April 24th, 1869, so held. Hence there was no person in whose favor an estoppel could work. Douthitt v. Stinson, 63 Mo. 279. The judgment against Clark being a nullity (because not rendered in favor of any legal entity), no question of estoppel arises under it. Bigelow on Estop., 21, 283; Wixom v. Stephens, 17 Mich. 518.

2. Again the relation between Clark and Chrisman is that of debtor and creditor, which is one of antagonism and not of privity. Hence there is no estoppel. Bigelow on Estop., p. 280; Waters' Appeal,35 Pa. St. 523; Buffum v. Ramsdell, 55 Me. 252.

3. If a company professing a corporate existence which it does not possess, acquires the property of another and conveys the same, or place themselves in a position affecting the rights of another, under the false claim of corporate existence, the corporate existence of such company may be inquired into. Carey v. Cincinnati, etc., R. R. Co., 5 Iowa 357; Phillips v. Wickham, 1 Paige 595; Briggs v. Penniman, 8 Cowen 387; Slee v. Bloom, 19 Johns. 456; King v. Pasmore, 3 Term Rep. 190; Rolle's Abr., 514.

Simrall & Sandusky for respondent.

1. By the execution of the note Clark admitted the corporate existence of the Missouri City Savings Bank, and he was estopped thereafter from denying its corporate existence. Farm. and Merch. Ins. Co. v. Needles, 52 Mo. 17; National Ins. Co. v. Bowman, 60 Mo. 252; Jones v. Cincinnati T. F. Co., 14 Ind. 89, 601; St. Louis v. Shields, 62 Mo. 247; Hall v. Harris, 16 Ind. 180; Depew v. Bank of Limestone, 1 J. J. Marsh 378; Congregational Society v. Perry, 6 N. H. 164; Bank v. Trimble, 6 B. Mon. 599; Franz v. Teutonia Building Association, 24 Md. 259; Steam Navigation Co. v. Weed, 17 Barb. 378; White v. Ross, 15 Abb. Pr. 66; Hyatt v. Esmond, 37 Barb. 601, 595; Palmer v. Lawrence, 3 Sandf. 161. It was unnecessary to allege that plaintiff was a corporation; and therefore unnecessary to prove it. Clark was not only estopped by the execution of said note from denying the corporate existence of the bank, but he was also estopped by the judgment. If the defense, nul tiel corporation, was open to him at all, it should have been asserted before the rendition of said judgment.

2. Chrisman, his assignee and privy, was likewise estopped. Herman on Estoppel, §§ 45, 46, 48, 49, 63. When Chrisman took his deed of trust the judgment in favor of the bank was a lien on Clark's land, and if Clark could not impeach said judgment lien, his grantee, Chrisman, could occupy no better position. Adams v. Barnes, 17 Mass. 365; Freeman on Judgments, §§ 91, 165; Bigelow on Estoppel, p. 82; Candee v. Lord, 2 Comst. (N. Y.) 269; Voorhees v. Seymour, 26 Barb. 569, 575; Sidensparker v. Sidensparker, 52 Me. 481; Chamberlain v. Carlisle, 26 N. H. 540, 553; Marriner v. Smith, 27 Cal. 649; French v. Shotwell, 5 John. Ch. 566; Drexel's Appeal, 6 Barr 272; Jacobs v. Burgwyn, 63 N. C. 196; Packard v. Smith, 9 Wis. 184.

Whether the Missouri City Savings Bank was a corporation, or an association doing business under an artificial name, the court had jurisdiction of the parties and subject matter, and its judgment therefore cannot be void. It is regular upon its face, and cannot be impeached collaterally; if erroneous or voidable, it could only be attacked in a direct proceeding. Hardin v. Lee, 51 Mo. 241: Martin v. McLean, 49 Mo. 361; Childs v. Shannon. 16 Mo. 332; Freeman on Judgments, §§ 131, 134, 334. The appellant cannot question the corporate existence, collaterally, of the Missouri City Savings Bank. It was a corporation de facto, and its existence de jure could only be questioned by the State by quo warranto proceeding. St. Louis v. Shields, 62 Mo. 247; Cooley's Const. Lim. 254; High's Extraordinary Leg. Rem. § 697; especially after appellant's grantor had entered into contract with said corporation. State v. Carr, 5 N. H. 367; President, etc. v. Thompson, 20 Ills. 200; Hamilton v. Carthage, 24 Ills. 22.

NORTON, J.

Joseph Clark died in the county of Clay in 1857, leaving a will, which was duly admitted to probate, containing the following provisions, viz: “I give and bequeath the farm on which I now reside, containing two hundred and forty acres of land, to my beloved wife during her natural life, and after her death I give and bequeath the said farm to my youngest son (Joseph Y. Clark), to be his to have and dispose of as he may desire. But in consideration of the above bequest, I require the said Joseph Y. Clark to pay to my daughters, Eleanor J. and Sarah M. each the sum of Three Hundred Dollars, the money to be paid after he obtains the farm.”

The testator's wife having died in August, 1859, Joseph Y. Clark, the devisee obtained possession of the said farm of 240 acres of land at that time. The said Joseph Y. Clark died in March, 1875, without having fully paid, as required by the will, the sum of $300 to each of testator's daughters, Eleanor J. and Sarah M. In the meantime the said Eleanor J. intermarried with Josiah Stoutimore, and the said Sarah M. intermarried with Thomas Hamilton. On the 20th of March, 1876, the said Eleanor J, and her husband, and the said Sarah M. and her husband, instituted separate suits in the Clay county circuit court, for the purpose of establishing the said respective sums of $300 with interest, less the amounts paid thereon, as a lien and charge upon the land devised, and praying for a sale of the same to satisfy the charge.

The land which was asked to be sold for the payment of the claims of said Eleanor J. and Sarah M., being situated in Clay county, and the Missouri City Savings Bank having on the 27th day of March, 1874, obtained in the Clay circuit court a judgment against said Joseph Y. Clark for the sum of $5,366 66-100, the said Missouri City Savings Bank was by order of the said circuit court made a party defendant in said suits with leave to plead. The said Joseph Y. Clark, on the 19th day of September, 1874, having borrowed of John Chrisman the sum of $1,200, for which he executed his note with A. J. Calhoun as security, and to further secure said note, also executed a deed of trust to 160 acres of the said 240 acres of land, in which said deed John A. Denny was the trustee, the court by its order made the said Chrisman and said trustee parties defendant to the said suits of Eleanor J. and Sarah M. and their husbands.

After said order was made the said Missouri City Savings Bank filed separate answers in said suits alleging that it was a banking corporation duly organized under the laws of Missouri and setting up said judgment for $5,366.66-100 as a lien on said land, and its allowance against the estate of said Joseph Y. Clark, who died in March, 1875. Defendant Chrisman also filed his separate answers in said suits in the nature of cross bills, denying that the bequests of $300 each to the said Eleanor J. and Sarah M. were charges or liens on the land devised in the will of the testator. Said answers also set up the statute of limitations, set up his note for $1,200 and the deed of trust given to secure it, prayed for a foreclosure of the same, and the sale of the 160 acres embraced in the deed, and that the proceeds thereof be first applied to the payment of the note secured by said deed. Defendant Chrisman also filed his cross answers to the separate answers of the said Missouri City Savings Bank alleging among other things that the note of Joseph Y. Clark to said Chrisman was the individual debt of said Clark and was not the debt of the firm of Gilmer, Clark & Co.; that the firm of Gilmer, Clark & Co. was composed of John A. Gilmer, William J. Gilmer, Samuel P. Clark and Joseph Y. Clark; that the judgment set up by the Missouri City Savings Bank was the debt of the said firm of Gilmer, Clark & Co.; that said Joseph Y. Clark, by signing the note for $4,000 on which said judgment was obtained, became a member of said firm as from the beginning; that the Missouri City Savings Bank was not a corporation. The Missouri City Savings...