Thomas v. Wilcox , 18 S.D. 625 ( 1904 )

Corson, P. J.

This is an action to quiet title to certain

lots in the incorporated town of Sisseton. The complaint is in the usual form. The defendant, Nelson Wilcox, who was the only defendant served and appearing in the action, denied the allegations of the plaintiff’s complaint, and alleged in his answer that the Reservation Land Improvement Company was in fact a copartnership, and that he was one of such copartners; that said copartnership owned the lots in question; and that, £.s such copartner, he had an interest therein.'' The case was tried'-by a referee, who found the facts and stated his conclu1 sions of law in favor of the plaintiff. The report of the referee was confirmed by the court, and judgment entered thereon, and from this judgment and order denying' a new trial the defendant Nelson Wilcox has appealed.

: The plaintiff claimed title under a deed from the Reservation Land Improvement Company, which claimed title to the same under a patent from the government of the United States to the president of the board of town trustees in trust for the use and benefit of the occupants of the town. It is contended by the appellant that the court erred in admitting in-evidence^ over defendant’s objections, plaintiff’s Exhibit C — being-the deed from Herbert L. Green, president of the board of trustees qf the town of Sisseton, to the Reservation Land Improvement Company, through which plaintiff claims title.to the:land-in controversy — for the reason that there was no evidence that the corporate authorities of said town had either joined in. or authorized the execution of said deed. This objection was clearly untenable, for the reason that the patent introduced in evh dence, after the usual recitals, exants the property to the president of the board of trustees in trust for the use and benefit of the occupants, and to his successors, and' not to the incorporated town or its board of trustees. It will thus be seen that the legal title to the property vested in Herbert L. Green in trust for the occupants, and that he was the proper and only party authorized to execute the deed to such occupants. ■ The Reservation Land Improvement Company claimed to be such an occupant, and the government title, through Herbert L. Green, as trustee, was properly vested in the corporation. ■ The Land Department has given to the acts of Congress a construction, and the construction of that department is. conclusive upon this court until the patent is assailed by the government itself. . -

It is further contended by the appellant that the description of the property in the ' plaintiff’s corhplaint is. not sufficiently definite and certain to- enable • her - to ■ -quiet'title-to the same; but this question, so far as the abstract discloses, was not raised in the court below, either on the trial, or the motion for a new trial, and hence- cannot be raised -for the’ first time in this court. Parrish et al. v. Mahany, 12 S. D. 278, 81 N. W. 295, 76 Am. St. Rep. 604; Noyes v. Brace, 9 S. D. 603; 70 N. W. 846; Thresher Co. v. Schmidt, 9 S. D. 489, 70 N. W. 646.

lt is further contended by the appellant that the acknowledgment of the deed purporting to be executed by Herbert Li Green to the Reservation Land Improvement Com pany was- defective in that there is an omission of the notary to-certify that'' said Herbert L. Green was known to -him to' be such -trustee; but we are of the opinion that there is no merit in this contention, as the notary certifies that said Herbert L. -Green'-was known to him to be the person who is described-in-and-who -executed the annexed instrument, and in -the deed'- itself it recites “That I, Herbert L. Green, President of the Bo'ard of Trustees of the town of Sisseton, Roberts ■ county, as Trustee for the several occupants and claimants- of the said town, party of the first part, for and in consideration-,” 'etc. ;■ and the deed-id signed, “Herbert L. Green, President’ Board -of - Trustees hofSisseton. Roberts County, South Dakota.” The certificate of the notary, therefore, that said Green was known to him to be the person who is described in and who executed the annexed instrument, was sufficient. Dail v. Moore, 51 Mo. 589. The legal title being vested in the president of the board, such president, in transferring the title to the corporation, executed the deed as the legal owner; and in such case a different rule prevails from that governing a deed made by an officer acting for and in behalf of a corporation, or an officer who executes a deed as such officer, not being vested with the legal title. While it may be necessary for the notary, in taking the acknowledgment of the officer of a corporation, or a public officer in the execution of process, to certify that he knows such person to be the officer therein described, such certificate is not required in the case of a trustee in whom is vested the legal title.

It is*further contended by the appellant that the deed from Green to the Reservation Land Improvement Company was also improperly admitted in evidence for the further reason that the said Reservation Land Improvement Company was not shown to be a corporation. This contention is also untenable, for the reason that a properly certified copy of the articles of incorporation of said company, was admitted in evidence, and from it it appears that such a company was incorporated, and complied with the laws of the state in reference thereto, had accepted its articles of incorporation, and had organized and transacted business thereunder.

It is contended, however, that the incorporation was for purposes not authorized by the statute, namely, “the ownership, purchase, sale, and improvement of lands, or the carrying on of any industrial pursuit which may from time to time seem to be demanded by the best interests of the company.” Whether or not the company was properly organized to engage in that particular business cannot be raised collaterally in this proceeding. It was certainly authorized to acquire and hold land for certain purposes, and whether or not the amount of land acquired and held exceeded the limits authorized by law can only be determined in an action brought on behalf of' the state. Gilbert v. Hole, 2 S. D. 164, 49 N. W. 1; Toledo & A. A. R. Co. v. Johnson, 55 Mich. 456, 21 N. W. 888; Detroit City R. Co. v. Mills, 85 Mich. 634, 48 N. W. 1007; Wyandotte Electric Light Co. v. Wyandotte, 124 Mich. 43, 82 N. W. 821; Goodbread v. Philadelphia, B. & B. M. Turnpike Co., 13 Pa. Super. Ct. 82; Concord Apartment House Co. v. Alaska Refrigerator Co., 78 Ill. App. 682; Tennessee Automatic Lighting Co. v. Massey (Tenn. Ch. App.), 56 S. W. 35.

The further contention by the appellant that the' articles of incorporation were insufficient for the reason that the affidavits as to the trust clause required by law were not as full and specific as the law requires, we think, is also .untenable. Chapter 154 of the Laws of 1890 (section 5) provides that it shall be the'duty of the'Secretary of State, on the application of persons for a corporate charter, to require two applicants therefor to make oath that such corporation is not being formed for the purpose of enabling several corporations to avoid the 'provisions of the act, and provides that “if such oath or affirmation is not satisfactory the Secretary is authorized to withhold such charter.” In the case at bar the affidavits were in fact made by two of the incorporators. The first — that made by Her-. • bertL. Green — was substantially in the form required by the statute, and, was clearly sufficient. The second, made by F. W. Pettigrew, was also in substantial compliance with the statute, though it contained matter in addition thereto not required by the statute, and therefore sufficiently complied with the law. The finding of the court that there was no partnership agreement, and that the defendant had no interest in any part of the premises described in the complaint, and that his alleged claim was unfounded, was clearly sustained by the evidence.

Finding no error in the record, the judgment of the circuit court and order denying a new trial are affirmed.