Westerfield v. Cohen

PROVOSTY, J. This is a suit to compel .-acceptance of title to real estate. The property in question consists of four lots of .ground in square 579, bounded by Soniat, Howard, Robert and Freret streets, and designated by the letters A, B, C, and D, as per .survey made by Geo. D’Armas, civil engineer. The plaintiff acquired the property at a sheriff’s sale made in foreclosure proceedings against one Morris Wilson. It is to Morris Wilson’s title that objection is made. Morris Wilson acquired in 1892 by a notarial act, wherein the vendor is described as follows : “Charles W. Dale, a resident of this city, acting for the ‘Old Folks Home’ of the city of New Orleans, as per power of attorney hereunto annexed and forming part hereof.” And the property is said to be— ‘‘the same property acquired by and for said Old Folks Home from Eugene Dupre, as per act passed before Robert J. Kerr, late notary of this city, on the 12th day of September, 1885.” The power of attorney annexed to the act reads, in part, as follows: “March 15, 1892. “State of Louisiana, Parish of Orleans. “We, the undersigned, representing the Old Folks Home, namely, the Wesley, Union, First Street, Camp St., Camp Parapet, Laharpe, St. Matthew, Simpson, Mount Zion, Haven, and Sixth Street, Chapels of the Methodist Episcopal Church, as to the property which was purchased for said Old Folks Home represented by the Rev. Marcus Dale, namely, a square of ground and appurtenances in the Sixth district of New Orleans, No. 579, bounded by St. George, Long, Soniat, and Robert streets, comprising 22 lots of ground as per act before Robert J. Kerr, notary, on the 12th of September, 1885, and registered in the conveyance office in Book 123, folio 688, do hereby authorize and empower the said Reverend Marcus Dale to sell the said property for a sum not less than - dollars, and upon such terms and conditions as he may deem fit and of best advantage; to pay and settle all indebtedness of said property, or have the purchaser assume the same, and deduct it from the price. And hereby he is authorized- to sign and execute all necessary deeds and documents, and to do and perform each and every thing in relation to said transfer as though he had been thereunto specially authorized; with full power of substitution and revocation; we hereby ratifying all that he shall lawfully do, or cause to be done, in the premises, in faith of which we hereto sign our names for various bodies we represent, having full authority and being thereunto specially authorized. “[Original signed] T. J. Johnson. “John Qualls. “Elijoh Clark. “R. C. Barrow. “Stephen Duncan. “T. P. Jackson.” [535] Going to the act before Robert J. Kerr, by which said property is here said to have been acquired for the Old Folks Home from Eugene Dupre, we find that the said act of sale recites that the sale is made — ■ “unto Reverend Marcus Dale herein representing and acting for and on behalf of the Wesley Union, First Street, Camp Parapet, Laharpe, St. Matthew, Simpson, Mount Zion, Haven and Sixth Street, Chapels of the Methodist Episcopal Church; ' the said Marcus Dale being specially empowered thereunto, as will appear by the annexed authority.” And that the act further recites that: “This sale is made for the purpose and design of establishing a home and support for indigent members of Methodist churches among the colored people, known as the Old Folks Home.” And that the act further recites that the price of the sale is $550, whereof $100 has been paid cash, and that for the balance the purchaser— “has furnished two notes each for $225, drawn and subscribed by him for the Old Folks Home, to the order of and indorsed by him for the Old Folks Home.” The “authority” referred to in said act as being “annexed” is as follows: “New Orleans, Sept. 12, 1885. “We, the undersigned, representing the Old Folks Home,” authorize and empower the Reverend Marcus Dale to purchase certain property situated in the Sixth district of this city, designated as square No. 579, to make the cash payment, sign the notes for the credit payment, and execute the act of sale with special mortgage and vendor’s lien and privilege. “[Signed] “Rev. Tennessee P. Jackson, Simpson Chapel. “Rev. Ernest Lyon, 6th Street M. E. Ch. “Rev. John Qualls, 1st Street M. E. Ch. “James W. Hudson, Mt. Zion M. E. Church. “Elijoh Clark, Laharpe M. E. Church. “Stephen Duncan, Union Chapel M. E. Church. “Z. T. Gayden, Thompson Chapel, M. B. Church. “A. J. Ford, Pastor Clinton Str. M. E. Church. “T. J. Johnson, of Camp Parapet.” At the daté of this sale, September 12,. 1885, the said Old Folks Home, for the benefit of which the purchase is said to have, been made, was not yet incorporated. A. notarial act of incorporation had been passed; but the act had not yet been approved' by the district attorney, nor recorded. The act was approved by the district attorney on October 16, 1885, and was recorded on October 20, 1885. A corporation does not come-into existence until its charter is approved by the district attorney and recorded. Rev. Stat. § 677; Field v. Cooks, 16 La. Ann. 153; Williams v. Hewitt, 47 La. Ann. 1076, 17 South. 496, 49 Am. St. Rep. 394. The act of incorporation recites that, desiring to form a religious and charitable-corporation under name of “Old Folks Home Association of New Orleans, La.,” the following persons, namely: “Marcus Dale, representing Wesley Chapel; Stephen Duncan, representing Union Chapel;Thomas J. Johnson, representing Parapet Chapel; Robert O. Barrow, representing St. Matthew Chapel; John Qualls, representing Winan Ohapei; Tennessee Jackson, representing Simpson Chapel; Elijoh Clark, representing Laharpe Chapel; and William Murrel” ■ — appeared before the notary; and that: “They agreed, covenanted and do covenant and agree to form themselves and such other persons who may become their associates, and their successors into a corporation for the object and purpose of the erection and building-of homes for the aged and infirm members of their associations in this city and in this state at large and to create a fund which shall be applied to the carrying intb execution of' the aforesaid objects.” The act further recites that: “Any Methodist church may unite with the-association by making application to the board of managers and paying into the treasury,” etc. The act further recites: “That the business and affairs of said corporation shall be managed and conducted by a board of managers to be composed of two members from each church herein represented of which one shall be president, one vice-president, one secretary and one treasurer.” [537] And that: “The minutes of all proceedings by the board • of managers shall be kept by the .secretary and certified by the president.” It is needless to consider whether, by the •said purchase from Eugene Dupre, the title to said property vested in said corporation, for whose benefit the purchase is said to have been made, or in the several individuals who gave Marcus Dale the power of attorney to make the purchase, or in the in- • dividuals composing the congregations of the several chapels for which the givers of said power of attorney declared they were acting. Wherever the title then vested, it has never been divested. If it vested in the said •corporation, there has never been any divestiture, because there has never been any action taken at any meeting of the board of managers of said corporation looking in that direction. If said title vested in the several persons who gave the power of attorney to Marcus Dale for making the purchase, only some, not all, of these persons, joined in giving the power of attorney to make the sale to Wilson. If said title vested in the . several congregations, these congregations have never taken any steps towards an alien•ation. The judgment appealed from is therefore ■set aside, and the suit is dismissed, at the .plaintiff’s cost.