Sparks v. Woodstock Iron & Steel Co. , 87 Ala. 294 ( 1888 )

SOMERVILLE, J.

1. The instrument bearing date- October 20th, 1884, purporting to convey the land in controversy to Brannon by Mrs. McAdams, as grantor, has every element of a good and valid deed of conveyance, except as to its attestation by the requisite witnesses. It is defective in the latter particular, on the ground that neither of the attesting witnesses wrote their names, but the name of each was written by some one else, and was authenticated only by the making of the witnesses’ “marks” respectively. If actually signed by the grantor, it was good nevertheless, as an agreement to convey, and a court of equity will enforce its specific execution by compelling the heirs of the deceased grantor to convey, unless some sufficient reason is shown why this divestiture of title should not be decreed. — Code, 1886, § 1789; Roney v. Moss, 74 Ala. 390; 3 Brick. Dig. p. 362, § 435.

2. We have examined and weighed the testimony in the case, and are of opinion that it shows satisfactorily that the instrument was voluntarily signed by the grantor, Mrs. McAdams, with a full knowledge of its contents, and that she was of sound mind at the time of its execution. The preponderance of the testimony, moreover, favors the conclusion reached by the chancellor, that the consideration shown to have been satisfied in money and services by the grantee, Brannon, under whom the appellees claim title, was of a character to render the contract not only fair, j ust and reasonable in all its parts, but one that was, under the peculiar circumstances, quite advantageous to the grantor. The charge of fraud, duress, or unfair advantage, is not, in our judgment, supported by the evidence.

3. The contention that the Woodstock Iron- and Steel Company, one of the complainants in the bill, is not a legally organized corporation, is not well taken. It is not denied that all proper steps were taken to organize the company under the statute relating to business corporations, except the issue of the requisite certificate of organization required by section 1807 of the Code of 1876. It is shown that the proceedings as to organization, regular in form, were certified by the directors to the probate judge, which was required to be done by this section of the Code, “upon the completion of the organization of the company,” and after the payment of twenty per cent, of the capital subscribed. The judge was requested to issue the certificate, and made an order that it should issue. The provision of the statute is, that, after these steps are taken, the probate judge “shall issue to the company a certificate that they have fully organized according to the laws of Alabama, under the name and for the purposes indicated'in their written declaration, and that they are fully authorized to commeuce business under their charter.” — Code, 1876, § 1807. The duty of the probate judge, in this particular, was ministerial, and mandamus would clearly lie to compel its performance. — 1 Morawetz on Corp. (2d Ed.) § 15. This certificate was not a condition precedent to the company’s incorporation becoming complete under the statute, but it is the mere evidence of the fact that it had already become so. The very language of the statute, on the contrary, shows the legislative intention to be, that such a certificate could only issue “upon the completion of the organization of the company.” Whether necessary to a license, or pre-requisite of the right to carry on business after organization, is another question, which can not affect the rightful existence of the corporation — the only inquiry here raised by tbe defendants’ plea of nul tiel corporation. 1 Morawetz on Corp. §§ 29, 27, 30.

"We discover no error in tbe decree of tbe chancellor, granting relief prayed by tbe complainants, and it is affirmed.