Mexican Gulf Land Co. v. Globe Trust Co. , 125 Miss. 862 ( 1921 )

Anderson, J.,

delivered the opinion of the court.

This is a bill by the appellant, the Mexican Gulf Land Company, a Mississippi corporation, against the Globe Trust Company et al., appellees, to cancel and set aside as a cloud on its title to certain lots claimed by it in Harrison county described in the bill, the paper exhibited with the bill purporting to be its own deed to the lots in question to one of the appellees, Leland J. Henderson, made in 1909, as well as all conveyances made since that time to those claiming title or any interest in the land in question through Henderson under said deed, all of whom were made parties defendant. Appellees, defendants in the court below, demurred to- the bill, which demurrer was sustained by the court, and an appeal granted to the appellant, the Mexican Gulf Land Company, to settle the principles of the cause.

The grounds relied on in the bill to set aside and cancel these conveyances are substantially as follows: That the consideration, two thousand, three hundred, sixty-two dollars and fifty cents, recited in the paper purporting to be a deed from appellant to appellee, Leland J. Henderson (on the validity of which all subsequent conveyances to those claiming thereunder are made to depend), was “feigned and fictitious,” and had never been paid by the grantee. And, using the language of the bill:

“That in addition said alleged deed of January 25, 1909, is void on its face; and the attempted record or registration thereof imports nothing, and the same was never subject to recording. That the'same ivas never acknowledged by the president of the company, the complainant, as required by the laws of the state of Mississippi, nor by any other officer thereof. That said deed pretends to be acknowledged by the secretary of said company, and, as appears therefrom, the grantee in said instrument, Leland J. Henderson, who in. fact was one and the same person, and therefore incompetent to convey land to himself.”

In the view taken by the court it is not necessary to go beyond the deed from appellant to appellee Leland J. Henderson, made in 1909, and the allegations of the bill touching the facts of its execution and its form and contents ; for the whole case turns on the validity of this deed.

It is contended on behalf of appellant that the deed in question is void because the grantee therein, Leland J. Henderson, joined in its execution for the appellant company as its secretary; that as such secretary he occupied a relation of trust toward the stockholders of the company, and for that reason under the law7 he could not be both grantor and grantee in the deed.

For the purposes of this decision it may be conceded that the deed would be void if the secretary of appellant company alone had executed it for his company, but that is not the fact, because the allegations of the bill show7, as does the deed itself, that the president of appellant company, Elliott Henderson, also joined in the ¡execution of the deed on behalf of appellant company. Section 2766 Code of 1906 (section 2270, Hemingway’s Code) among other things, provides that a corporation may convey its lands under the corporate seal and the signature of an officer. Therefore, eliminating the secretary,' Leland J. Henderson, from the deed as grantor therein for appellant company, there is left a deed in due form executed by the appellant company through its president, Elliott Henderson. We are unable to see how the fact that the secretary occupied this dual relation in the execution of the deed rendered void the action of the president of the company in executing the deed for his company.

It is further contended on behalf of appellant that the acknowledgment of the deed by the president of appellant company is void because the certificate of the, officer talcing same fails to show the state and county, or venue, wherein he acted; that under the laws of this state an officer taking an acknowledgment to a conveyance acts judicially, and the venue of such an acknowledgment is jurisdictional, and, if not shown, the acknowledgment is void, and the conveyance is not entitled to be recorded, and there-, fore, if recorded, does not import constructive notice. For the purposes of this decision this contention may also be conceded. There is no statute in this state requiring conveyances of real estate by corporations to be acknowledged and filed for record in order to be valid between the parties. Section 2766, Code of 1906 (section 2270, Hemingway’s Code), referred to above,, is the only statute we have on the subject, and it simply provides as stated above, that a corporation may convey its lands under the corporate seal and the signature of an officer, and provides further that “such officer signing the same may acknowledge execution of the deed, or proof thereof may be made as in other cases.” Acknowledgment and| recording are not made compulsory. They are only for the purpose of registration and constructive notice. They have nothing to do with the validity of the deed as between the parties thereto. The deed as between the parties, is just as good without as with those formalities.

We therefore have a deed valid on its face, and, in the opinion of the court, taking the allegations of the bill for their full value, no ground has be'en shown to set it aside. There is no charge in the bill that the grantee, appellee Le-1 land J. Henderson, practiced any fraud whatever upon the appellant in procuring the deed. It is true the bill avers that the consideration recited in the deed was “feigned and fictitious,” and had never been paid. That, however, is no ground'to set aside and cancel the deed. If fraud is relied on, the main facts constituting the fraud must be set out iu the pleading specifically and without equivocation; it cannot be left to mere inference.

For aught that appeárs in the bill to the contrary, the president of the appellant company may have been authorized and required to make the deed in question by a resolution. to that effect passed by all the stockholders as well as all the directors of the company at legal meetings of each. The deed itself, which is made a part of the bill, expressly recites on its face that it was made in conformity to a resolution of the appellant company, passed at a meeting of the company, and recorded in its minutes.

Affirmed and rema/nded.