O'Donnell v. C. R. Johns & Co.

HENRY, Associate Justice. This suit was commenced in the year-1886 by Sarah Margaret Dickson, joined by her husband Hugh S. Dickson, and the corporation of C. R. Johns & Sons as plaintiffs, against M. Looscan, as administrator of the estate of James M. O’Donnell, deceased, and the heirs of said James M. O’Donnell, to recover two tracts of land, each containing 640 acres, patented by the Republic of Texas to CharlesKessler as assignee of H. A. Robinson. The defendants pleaded not guilty. The plaintiffs suggested to the court by their pleadings the death of Hugh S. Dickson, who they allege was only a pro forma party, and also-that after the suit was instituted the charter of the corporation of “C. R. Johns & Sons” was amended so as to make the name of the corporation “ C. R. Johns & Co.,” and prayed that the suit proceed in the name of C. R. Johns & Co. and Sarah Margaret Dickson, as plaintiffs. The defendants pleaded, under oath, that since the commencement of the suit the corporation of C. R. Johns & Sons had ceased to exist under that name; and further, that the purported amendment of the charter of said corporation, changing its name to C. R. Johns & Co., was not lawful, because one of the three stockholders whose names were signed to the proposed amendment was, when she signed the same, a married woman, and that by reason of her coverture she was not qualified to perform that act. Plaintiffs’ evidence of title was as follows: 1. Patents from the Republic of Texas to Charles Kessler, assignee of H. A. Robinson, dated the 26th day of February, 1842. 2. A deed from Charles Kessler, by his attorney in fact, James A. Mason, to Frederick Stoever. This deed recites that said Mason was duly appointed by a letter of attorney dated the 5th day of March, 1841, and the deed to Stoever is dated the 16th day of September, 1844, and was recorded on the 4th day of January, 1845. 3. The last will of Frederick Stoever, with certificates showing its probate in the State of Pennsylvania in the year 1866, and in this State in the year 1885. This will, after certain specific bequests, not naming the land in controversy, makes the plaintiff Sarah Margaret Dickson residuary legatee of the testator’s estate. 4. A certified copy of a deed by Hugh S. Dickson and Sarah Margaret [364] Dickson, dated April 1,1885, conveying to the corporation of C. R. Johns & Sons the lands in controversy for a period of five years, upon certain trusts mentioned in the deed looking to the perfection and preservation of the titles to said lands and the sale thereof for the equal benefit of said -corporation and the grantors in the conveyance. 5. The resolution of three stockholders of the corporation of C. R. •Johns & Sons, one of them being a married woman, changing the name of the corporation as before specified, and the certificate of the Secretary of State of the filing of said resolution in his department. 6. The certificate of the State Comptroller showing that Frederick Stoever had paid taxes on the land in controversy from his purchase until his death. Defendants introduced a deed from Charles Kessler to Hugh Towers, dated July 29, 1884, and a regular chain of title from said Towers down to themselves. Ho power of attorney from Charles Kessler to James A. Mason was produced, and defendants objected to the introduction of the deed in evidence because the power of attorney was not produced. We think there was no error in allowing the deed to be read. It came from the proper custody, was over thirty years old, and it was shown that title under it had been long asserted and the taxes on the land paid by Stoever and those holding through him. Even less evidence than was produced would have justified the admission of the deed without producing or accounting for the power of attorney. The existence of the authority recited in the deed was correctly presumed. When the certified copy of the deed from Hugh S. and S. M. Dickson to C. R. Johns & Sons was offered it was accompanied by an affidavit of an officer of the corporation, stating that the original deed was “lost and can not be found.” Plaintiffs also produced the testimony of a witness to the effect that he had searched for the deed among the papers of a deceased attorney ■for plaintiffs, to whom it had been sent, without being able to find it. The court overruled an objection made to the testimony of this witness. The affidavit of 'the officer of the corporation furnished the predicate prescribed by statute for the introduction of a certified copy of the recorded deed, and it is unnecessary to consider whether or not the testimony objected to was admissible. It did no harm. The court charged the jury that the evidence showed that the plaintiff corporation was a legal corporation and had the legal capacity to sue. Defendants requested the court to charge that if the jury believed the amendment to the charter of C. R. Johns & Sons was subscribed by only three persons, and that one of them was a married woman, “ then the plaintiffs 0. R. Johns & Sons are not a corporation, have not the capacity "to take and hold land, or sue as such, and this suit can not be maintained, [365] and you will find for the defendants and against the plaintiffs C. E. Johns & Sons.” The court refused to give the charge. The action of the court, both in refusing this charge and in giving the one it did on the subject, is-assigned as error. Ho question is raised about the legality of the corporation of C. E. Johns & Sons. The only one raised is about its attempted change of its. corporate name. If the attempted change of name was unlawful, it would still be a lawful corporation with the name by which it brought this suit. An attempt to change the corporate name in a manner not authorized by law can not be held to have had the effect given it by the charge asked and refused, but would rather leave the corporation as expressed in the. general terms of the charge given by the court. As the case before us does not demand an expression of our opinion as to whether or not a married woman can be one of the three persons who-may subscribe the charter of an intended corporation, as directed by article 568 of the Eevised Statutes, we do not express one. Hor do we decide that a change of the name of an existing corporation, in pursuance of article' 571 of the Eevised Statutes, would be governed by the same rule that is applicable to the creation of one. The record fails to show that any objection was made to the introduction in evidence of the will of Frederick Stoever. The objection made to it in this court, if it was good, which we do not intend to intimate, comes too late. We find no error in the proceedings, and the judgment is affirmed. Affirmed. Delivered February 28, 1890.