Wolford v. Crystal Lake Cemetery Ass'n
| Decision Date | 21 August 1893 |
| Citation | 56 N.W. 56,54 Minn. 440 |
| Parties | Peter Wolford v. Crystal Lake Cemetery Ass'n |
| Court | Minnesota Supreme Court |
Argued July 11, 1893.
Appeal by plaintiff, Peter Wolford, from an order of the District Court of Hennepin County, Henry G. Hicks, J., made March 22 1893, denying his motion for a new trial.
The defendant, the Crystal Lake Cemetery Association, was organized as a corporation on October 20, 1882, under 1878 G S. ch. 34, title 5. It purchased of S. H. Wood, June 7, 1883 the northeast quarter of the southwest quarter of section four (4) T. 29, R. 24, north of, and near Minneapolis. On February 2, 1886, the corporation by its board of trustees surveyed and platted the whole of the land as a cemetery, and caused the plat to be certified, acknowledged and duly recorded. The certificate stated that the land was to be occupied exclusively as a cemetery and purposes necessary or proper therewith, and that the corporation thereby dedicated the same forever to that purpose. About this time the forty acres was inclosed by a good substantial fence. On October 30, 1888, the Cemetery Association owed plaintiff $ 5,000 for money borrowed and used in paying its debts and making improvements on the property. On that day it mortgaged the northeast quarter of the forty acres to him to secure this debt. The president of the corporation told plaintiff that this ten acres had not been platted or actually used for burial purposes. On January 8, 1890, he foreclosed the mortgage under a power of sale therein, bid in the ten acres for $ 5,740.80, and received the sheriff's certificate of sale. The land was not redeemed, and on February 5, 1892, plaintiff brought this action of ejectment to recover possession, and damages for withholding it. The defendant answered, stating these facts, and claiming that the mortgage and its foreclosure were void. The trial court so held, and ordered judgment for defendant. Plaintiff moved for a new trial. Being denied, he appeals.
Order affirmed.
Boardman & Boutelle, for appellant.
1878 G. S. ch. 34, title 5, § 242, provides that these associations shall have the legal powers and privileges, and be subject to the liabilities and restrictions respecting corporations. Corporations have implied authority to borrow money and incur debts for the purpose of accomplishing their legitimate purposes unless the contrary be expressly provided, and the authority to borrow money includes authority to give a written acknowledgment of indebtedness in the usual form. The creation of the indebtedness was therefore intra vires. But the strenuous contention upon the part of the defense is, that the execution of the mortgage was ultra vires, that nothing passed thereby and plaintiff acquired no interest in the land thereunder. Conceding, for the sake of argument, that the execution of the mortgage was ultra vires, defendant is not in a position to avail itself of this fact as a defense. The transaction is executed and defendant has received and retained its benefits. We have therefore nothing to do with the question of ultra vires as applied to executory contracts. Bradley v. Ballard, 55 Ill. 413; Witter v. Grand Rapids F. M. Co., 78 Wis. 543; Wright v. Hughes, 119 Ind. 324; Hays v. Gallion Gas Light Co., 29 Ohio St. 330; National Bank of Xenia v. Stewart, 107 U.S. 676; Holt v. Winfield Bank, 25 F. 812; Town Co. v. Morris, 43 Kan. 283; National Bank v. Matthews, 98 U.S. 621.
The defendant claims that filing of the map or plat of the cemetery, according to the provisions of the statute, operated to impress upon this land a perpetual use for purposes of a burial ground. That, in consequence thereof, the land could not be conveyed freed of such use, and that the mortgage was therefore a nullity. Assuming the correctness of these premises, does the conclusion logically follow? If the land was impressed by law with this use, defendant held it subject thereto. Its mortgage, therefore, purporting to convey a greater interest than it had in the premises, would not be for this reason void, but would be operative to the extent of defendant's interest therein. Its grantee would take the land subject to the same use. Under this construction, plaintiff would succeed to the proprietorship of the lands embraced in the northeast quarter of the forty-acre tract, holding them as defendant held them, for the purpose of, and subject to use for burial. Palmer v. Cypress Hill Cemetery Ass'n, 122 N.Y. 429; Seymour v. Spring Hill Cemetery Ass'n, 16 N.Y.S. 94; New York Bay Cemetery Ass'n v. Buckmaster, 49 N. J. Law, 449.
The defendant is a strictly private corporation, in which the public have no interest whatever. In re Deansville Cemetery Ass'n, 66 N.Y. 569.
Wilkinson & Traxler, for respondent.
The powers granted by our statute to such a cemetery association are such, and only such, as are necessary to enable it to perform its public duty or public trust. All others are withheld. Its officers and agents are trustees of an express statutory trust, with all their powers and duties defined and limited by the statutes. The statute declares the association to be for a public use, by granting it the right to exercise the power of eminent domain, as a means of acquiring land to use in the fulfillment of the single purpose of its existence, and the right of eminent domain can only be exercised for a public use. Evergreen Cem. Assoc. v. Beecher, 53 Conn. 551; Balch v. County Com'rs, 103 Mass. 106; Edgecumbe v. Burlington, 46 Vt. 218.
The doctrine of ultra vires and the authorities cited by the plaintiff have no application to the case at bar. The doctrine of ultra vires, in a strict sense, and as applicable to this case, applies to acts which are not within the scope of the powers of the corporation to perform under any circumstances. This distinction is made in the cases. 2 Beach, Corp. §§ 422, 438, 439; Bigelow, Estoppel, 466; Green's Brice's Ultra Vires, 550; Miner's Ditch Co. v. Zollenbach, 37 Cal. 543; McPherson v. Foster, 43 Iowa 48; Bissell v. Michigan, S. & N. I. R. Co., 22 N.Y. 258; Stewart v. Erie & Western T. Co., 17 Minn. 372, (Gil. 348.)
The plaintiff argues that defendant has ratified the acts of its agent in mortgaging its cemetery, by acquiescing and by failing to object. The act under consideration, being forbidden by the statute, is incapable of ratification. Thomas v. Railroad Co., 101 U.S. 71; Salem Mill Dam Co. v. Ropes, 6 Pick. 23; Martin v. Zellerbach, 38 Cal. 300.
The record shows that the tract has been expressly dedicated to cemetery purposes. Having been duly dedicated, accepted and used, it is impossible for the defendant to abandon it, or to appropriate it to any other or different use. Wilder v. City of St. Paul, 12 Minn. 192, (Gil. 116;) Hunter v. Trustees, 6 Hill, 407; City of Cincinnati v. Lessee of White, 6 Pet. 431.
Prior to June, 1883, this defendant was, and ever since has been an incorporated cemetery association, organized pursuant to 1878 G. S. ch. 34, tit. 5. In that month and year it acquired the title to a tract of land of forty acres, ten acres of which has become the subject of this action; the ten acres comprising the northeast quarter of the forty-acre tract. In the year 1886 the corporation had the entire forty-acre tract platted into lots, avenues, and walks, and the plat thereof, showing that the land was thereby dedicated as a cemetery, to be used exclusively for the burial of the dead, was then recorded. It was designated "Crystal Lake Cemetery." After that, and in October, 1888, the corporation became indebted to the plaintiff for money loaned to it, and by it used in paying its debts, and in laying out and improving the cemetery grounds. This indebtedness was evidenced and secured by a promissory note of the corporation, and by a mortgage to the plaintiff of the ten acres in question, executed pursuant to a resolution of the defendant's board of trustees. The plaintiff was induced to accept the note and mortgage securing the same by representations of the defendant's officers to the effect that this ten-acre tract had not been laid out as a part of the cemetery, or actually devoted to or used for burial purposes. The representations were made in good faith, as the court finds, but were untrue, and the plaintiff was deceived thereby. In fact, not only had the platting and dedication, as above stated, been made and recorded, but the whole forty-acre tract had been inclosed by a fence, which on one side, at the entrance, bore the name "Crystal Lake Cemetery." Thirty-four burials had been made on this ten acres, but close to the...
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