Daniels v. Roanoke Railroad & Lumber Co.

Allen, J. No objection is made by answer or demurrer that there is a misjoinder of parties or causes of action, and no exception presents the question of the right of the plaintiffs to recover for trespasses committed after the commencement of the action. ¥e do not intimate that such objections would have been sustained, and refer to them only for the purpose of excluding the idea that they were relied on, and are embraced in the motion for judgment of nonsuit. The defendant says, upon the facts admitted, that neither of the plaintiffs is entitled to maintain this action; that the plaintiff L. G. Daniels cannot do so as to trespasses committed prior to 17 December, 1908, because on that day he conveyed the land' to Albin Daniels, without reserving the right of action, nor as to trespasses after that date, because he had parted with his title to the land; and that the plaintiff improvement company has no right to sue, because its corporate existence is denied in the answer, and no evidence has been introduced to establish its incorporation, and further, if a corporation, having executed a deed of date 1 April, 1910, conveying the land without reserving its right of action, .it now has no right to sue. We will consider these questions in their order, and first as to the right of the plaintiff Daniels, and this depends on the-effect of his deed to Albin Daniels. The plaintiffs do not allege as a cause of action an injury to their possession, which would be sufficient to maintain an action for trespass (Frisbee v. Marshall, 122 N. C., 760), but they seek to recover damages for injury to the freehold — the land itself — • and it therefore was necessary to show title at the time of the injury complained of. If so, the plaintiff Daniels could not [426] recover damages accruing after tbe execution of bis deed of 17 December, 1908; but we do not tbink tbis deed, wbicb purports only to convey tbe land, bas tbe effect of transferring to tbe grantee bis right of action for damages accruing prior to its execution. Liverman v. R. R., 114 N. C., 696; Drake v. Howell, 133 N. C., 168. In tbe last case cited tbe plaintiff sought to recover damages for cutting timber on certain land, and tbe Court, among other things, said: “There is an allegation in tbe pleadings that tbe plaintiffs have acquired tbe title to tbe Britt tract since tbis action was commenced; but tbis, if true, cannot help them, as a conveyance of title to tbe land after tbe defendants bad committed tbe alleged trespass would not pass tbe right to tbe damages claimed by. tbe plaintiffs. Such damages are personal to tbe owner of tbe property and do not pass to bis grantees. Liverman v. R. R., 114 N. C., 692.” Tbe right of tbe improvement company to sue depends upon tbe solution of other questions. Tbe defendant denies that this plaintiff is a corporation, and it says if there is no evidence of its corporate existence, that tbe deed of Albin Daniels to tbe improvement company bas no effect, and that therefore tbe title remained in Albin Daniels, and that there can be up recovery of damages for acts committed after 17 December, 1908, tbe date of tbe deed, as Albin Daniels is not a party plaintiff; and it contends further that tbe failure to prove that tbe company is a corporation incapacitates it to sue. We must then inquire: 1. Is there evidence that tbe improvement company is a corporation ? 2. If not, bow does tbis affect tbe title to tbe land and tbe right to sue? Ordinarily, tbe right to question tbe exercise of corporate powers is'with tbe State and cannot be raised collaterally, but it bas been held in tbis State that a denial of corporate existence in an answer requires some proof on tbe part of tbe plaintiff. [427] This may be furnished by the introduction of a charter and evidence of its acceptance; by evidence of the exercise of the powers of a corporation for a long time without objection; by estoppel, and in other ways, and we are inclined to the opinion that the fact 'that all of the parties claim under L. G-. Daniels; that Albin Daniels, in his deed of 18 December, 1908, described the improvement company as a corporation; that the improvement company executed the deed of 1 April, 1910, as a corporation, and that during the whole of this period the .defendant was in the use and occupation of the land, is evidence of the fact; but if this is not so, the defendant is in no way prejudiced by the failure of strict proof. Albin Daniels held the title to the land one day, and there is no evidence of a trespass on that day. He conveyed to the improvement company as a corporation, and the improvement company as a corporation conveyed to the plaintiff L. G. Daniels. It follows that Albin Daniels and L. G. Daniels are estopped to deny the corporate existence of~tEe"compahy, and if it is in fact a partnership, the estoppel would extend to its members, who have permitted it to be held out as a corporation, and to receive and execute deeds, and to institute actions as such. If so, all the parties who could make any claim against the defendant, covering the time when the trespasses are alleged to have been committed, are bound by the estoppel, and neither can deny that the improvement company is a corporation; and it is not, therefore, important to the defendant whether, as matter of fact, it is a corporation. If, however, material to the decision of this case, and it appeared that the improvement company was a partnership and not a corporation, it would not necessarily follow that the action could not be maintained by it. A deed to a partnership by the partnership name is not void (Murray v. Blackledge, 71 N. C., 492; Simmons v. Allison, 118 N. C., 776; Grabbs v. Insurance Co., 125 N. C., 394), and a judgment in favor of a partnership, without giving the names of the partners, is valid. Wall v. Jarrett, 25 N. C., 42; Lash v. Arnold, 53 N. C., 206. These last cases were cited with approval in Heath v. Morgan, 117 N. C., 507, in which it was held that the action could not [428] be maintained in tbe partnership name, because objection to tbe absence of tbe individuals as parties was taken by demurrer. Kochs Co. v. Jackson, 156 N. C., 326. In tbis case tbe'defendant does no more than deny tbat tbe improvement company is a corporation, and if tbis is true, it may maintain tbe action in its partnership name, in tbe absence of objection by tbe defendant tbat tbe individuals composing tbe partnership, are not parties. We are, therefore, of opinion that tbe plaintiff L. G. Daniels may recover damages for trespass committed prior to 17 December, 1908, tbe date of bis deed, and tbat tbe improvement company may recover for trespasses after tbat time, and also, as bis Honor held, tbat tbe defendant' has no voice in tbe apportionment of tbe damages between them. Hocutt v. R. R., 124 N. C., 217. We think bis Honor construed tbe deed correctly as to tbe right to cut cedar, and tbat be properly refused to give tbe instruction requested. Tbe deed of tbe plaintiff Daniels to tbe defendant expressly excepts cedar and gum from tbe conveyance, and in tbe clause allowing tbe use of timber under tbe size conveyed provides: “And it is also stipulated and agreed tbat tbe party of tbe second part shall have tbe further right to take and use such of tbe dead and down timber, earth, and underbrush and timber under tbe size herein conveyed, including small gwn, upon said lands, as may be necessary for tbe purpose of constructing and maintaining and operating tbe said roads and railroads, and for operating any locomotives or other machinery, and for all other purposes necessary or incident to tbe cutting, rafting, or removal of said timber.” Tbe mention of small gum in this clause, and tbe failure to refer to tbe cedar, excludes tbe idea tbat it was intended to extend tbe rights of tbe defendant as to tbe cedar. His Honor instructed tbe jury tbat tbe defendant bad tbe right to cut cedar when necessary, to construct its roads or to move its machinery. [429] There are three exceptions to evidence: 1. To the evidence of a witness for the plaintiffs, Edmund Jones: Q. Along about the time those fires took place, what was the condition of the engine as to emitting sparks? A. It was in bad condition. 2. To the evidence of- a witness for the plaintiffs, William Potter: Q. Tell what you saw before this time and afterwards as to the engine emitting sparks. A. If we stopped near the engine it would catch our clothes and we would have to move out of the way. 3. To the introduction of the deed of 1 April, 1910, from the improvement company to L. G. Daniels. The form of the answer of the witness Jones may be objectionable, but it is but another way of saying that .the engine emitted a considerable quantity of sparks, and would not justify a reversal of the judgment, and his entire examination shows that he was required to state what he meant by “bad condition.” The evidence of both witnesses was material to the claim that the defendant set out fire on the land, and competent. It is not necessary to consider the objection to the introduction of the deed from the improvement company to L. G. Daniels, as both are parties plaintiff. The record is voluminous, but we have examined it and the briefs with care, and find No error.