Bumgarner v. Cogswell , 49 Mo. 259 ( 1872 )

Adams, Judge,

delivered the opinion o£ the court.

This was an action of ejectment for a lot in the town of Smith-ton, in Pettis county. The plaintiff claimed title as follows:

1. William E. Combs took possession of the land and caused it to be laid off into lots., blocks, streets and alleys, and made out, acknowledged and recorded a plat of the town.

2. A deed from said Combs and wife to Frederic L. Billon, in trust for the Pacific Railroad, which deed contains this language: “ The said trustee, at all times, upon the demand or order of the board of directors, by deed to be duly executed and acknowledged, shall convey any or all of the above-described real estate to such parties and for such consideration as the board of directors shall direct; and in the event of the failure or refusal of the said Frederic Billon to accept and execute the trust herein created, the said Pacific Railroad shall have power, by deed duly executed under the seal of said Pacific Railroad, to renominate and appoint another trustee, who shall by such deed be fully vested with all power and authority to execute the trust hereby created.”

3. Without showing any deed from the Pacific Railroad nominating John C. Porter and R. R. Powell trustees to execute the trust above created, the plaintiff produced a quit-claim deed from said Powell and Porter, trustees of the Pacific Railroad, to the plaintiff, which deed concludes thus : “In testimony whereof, the said John C. Porter and R. R. Powell, trustees as aforesaid, and George R. Taylor, president of the Pacific Railroad, in evidence that this conveyance is made at the request of said company, have hereunto set their hands and seals this day and date above written. (Signed) Pacific Railroad, [seal]. By George R. Taylor, Pres’t, [seal]. John C. Porter, Trustee, [seal]. R. R. Powell, Trustee, [seal].”

The foregoing deeds and evidence were given against the objections of the defendants. This being all the evidence, the ■defendants demurred to the evidence by asking the court to declare that upon the evidence given the plaintiff was not entitled to recover. But the court refused so to declare, and gave judgment for plaintiff. Motions for new trial, etc., were made and overruled.

The point is made that the deed to Billon, in trust for the railroad company, is void because the Pacific Railroad could not by its charter take lands thus conveyed to i t. But without deciding this question, as it does not necessarily arise in this case, we are clearly of the opinion that whether the railroad company could take the land or not, there was no deed shown from Billon, nor was there any appointment, by deed executed by the Pacific Railroad, of John C. Porter and R. R. Powell trustees to execute the trust; and the deed from them, although signed by Taylor as president of the railroad company, passed no title to the plaintiff, and therefore the demurrer to the evidence ought to have been sustained.

This being the case, the judgment must be reversed and the cause remanded.

The other judges concur