Watts v. Loomis

• Decision Date: 31 October 1883
• Parties: WATTS et al. v. LOOMIS et al., Appellants.
• Court: Missouri Supreme Court

81 Mo. 236

WATTS et al.

v.LOOMIS et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Macon Circuit Court.--HON. ANDREW ELLISON, Judge.

AFFIRMED.

H. Lander for appellants.

The deed from the Central Coal & Mining Company to Tompkins, did not convey the title of the company. It had no corporate seal. Corporations, in such cases, can only act and speak by their common seal. Angell & Ames on Corp., (8 Ed.) § 216; Sanford v. Tramlett, 42 Mo. 388. The statute requires the corporate seal. Gen. St., p. 444, § 5, and p. 329, § 18; Railroad Co. v. St. Louis, 66 Mo. 247; Shewalter v. Pirner, 55 Mo. 229; Hatch v. Barr, 1 Ohio 390; Brinley v. Mann, 2 Cush. 337; Bank v. Guttschlink, 14 Peters (U. S.) 30; Angell & Ames on Corp., (8 Ed.) § 226. The legal title is in defendants, and in trespass defendant may dispute plaintiff's possessory right by showing title and right in himself, or one under whom he claims. Reed v. Price, 30 Mo. 446. When both parties claim under a common grantor, the one showing the better title has the better right. Union Bank v. Manard, 51 Mo. 550. The action of trespass cannot be maintained, under all the facts of this case. The parties should be remitted to the action of ejectment where all questions of title and damages can be settled. Brown v. Carter, 52 Mo. 46; Ware v. Johnson, 55 Mo. 500; Cochran v. Whitesides, 34 Mo. 417; Kempton v. Cook, 4 Pick. 307. Ejectment will lie for a coal mine. Bacon's Abr., Title Ejectment, D. D.; Tyler on Eject., p. 41. In trespass to land, the title may come in question. Moore v. Perry, 61 Mo. 174. Plaintiff showed no title by adverse possession, and it will not be presumed. Lynde v. Williams, 68 Mo. 360, 370.

J. F. Williams and J. T. Jones for respondents.

EWING, C.

Plaintiffs are husband and wife, the wife claiming title to the land on which the tresspass is alleged to have been committed, and plaintiffs being in possession. They sue defendants for trespass in entering upon their land and mining and converting a large quantity of coal.

The defendants answered, setting up title in Bartlett and Thayer, and that defendants were their tenants, and as such in actual possession of the land since 1879, and mining and taking off the coal. That Bartlett and Thayer, and those under whom they claimed, had been in actual possession for more than ten years. The replication denied the new matter in the answer.

A jury was waived and the court found for the plaintiffs, whereupon the defendants appealed to this court.

It was admitted that the common source of title was the Central Coal and Mining Company. Plaintiffs' evidence tended to prove that one Dr. Fredericks bought the land in controversy from the Central Coal and Mining Co. in 1868, and immediately took possession thereof; that by agreement between Dr. Fredericks and one S. J. O. Tompkins, the title was made by the C. C. and M. Co. to Tompkins; that Tompkins gave a bond for title to Fredericks, who was in possession until 1870, when he (Fredericks) assigned his bond for title to Watts, the plaintiff, who then immediately went into possession and made a deed to Mrs. Watts, plaintiff, in 1873. That at that time the coal had never been entered by any one, either from the surface, or through any adjoining pit. Plaintiff then read the deed from Tompkins to Mary J. Watts; and then offered to read the deed from the C. C. & M. Co. to Tompkins, to which defendants objected, because, 1st “it does not purport on its face to be the deed of the company; 2nd, because it is not sealed with the corporate seal of the company; 3rd, because the same is not properly acknowledged.” The court overruled the objections, and allowed the deed to be read “for the purpose of showing a contract between the parties thereto of sale, and permission to occupy the premises by Tompkins and his grantees.”

Defendants read in evidence deeds ftom the C. C. & M. Co., down to Bartlett & Thayer, and a lease by them to defendants. The first being a deed of trust to Ed. Price, dated April 7th, 1870, and the last a deed from the assignee in bankruptcy, to Bartlett & Thayer, dated November 27th, 1875. Defendants parol evidence tended to show, that there was controversy between the C. C. & M. Co., and Bartlett & Thayer, and plaintiffs, as to who owned the coal; that in 1878 or 1879, defendants made an entry into the coal from a mining shaft, and worked it out; plaintiffs and defendants both claining it, all the while.

I. The first and most material question for consideration is, whether plaintiffs had such possession and title, as would authorize them to maintain trespass. It has long been settled, that possession alone, is sufficient to maintain an action of trespass as against a stranger. Any possession is legal possession, as against a wrong-doer. Reed v. Price, 30 Mo. 442, and authorities there cited. In the case at bar, both parties are in possession. The plaintiffs in possession of the surface of the land, with possession commencing in 1868, and continued down to the commencment of this suit, with color of title; the defendants with color of title, and possession of the mines below the surface; such possession commencing about 1878 or 1879, and holding down to the commencment of this suit. Both parties having actual continuous possession. In Brown v. Carter, 52 Mo. 46, it is said “this action can be maintained only where the plaintiff is in the possession of the close at the time of the...