.n:DERAL,
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KlllLLOGG
(Circuit Court, D. Kansas. February 24, 1800.' Ta'UIlTIl-'EQt1ITT
JURlsntC11'ION-P'ARTIEB,' ,", , ' ,. Whereon dissolution of a corporation, OYYl1ing a large number of town lots, such lots are given to a committee of stockholders, to be usoo for the benefit of the town, and the committee conveys the same to the mayor of the town, who conveys them toVBfio].ls persons, with th<l,aBsentof tb.ecommittee, a court 0;1; equity will not, after the lapse of 13 years; inquire into the ,execution of the trust by such committee, in a Buit'between the stockholders of· the corvoration. to Which the mayor's n,ot parties.
,
In
NevisOn, for complainants. " Rosiingfmt, ,Smith Dallas, for respondents. "
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,J·. ' This a bill presented tp this court ,by three stockholders of a 'corporation known as the l/Arj,{arisas City Town Company" against the ,other stoCkholders and officers of said corporation, for the purpose ofsettling the business of the company, and distributing alleged li.ssets amorig the several parties entitled ,thereto. The corporation was organized in July, 1871, for the purpose of selecting, laying out, and into lots, blocks, alleys, ,and parks, and for the occup!ltion, sale, thesaqle, and the corporation became by the expiration of the time lim.ited in its charter, in July, 1881., The complainants, among other thingsj aver "that prior to and at the ,expiratioo thereof said corporation was the owner of a large amount of property, consisting of abont five hundred lots in said city of Arkansas City and other property, and that said property has not been sold or,convayed"oJlin'any manner disposed of, by said corporation, or by anyone :lawfully acting on its beM1f,and that its title thereto has never bt;!f\olaw.fully divested,. but that the same is corporation property, .manyQf said lots are now occupied by diverspersons advel'sely, llnd in disregard of'the rights of your orators, and the other:persons who $1'e' iQterested therein;. and that said,.property should. be: recovered, relBeryeq, and disposed· of for .the benefit of those who contributed the mopey for. the,pu;JrQhase thereof, or their·assigns." The respondents admH··the of find also the averments as to the stockhQldera· apd. officers,etc.;. also that :said'::coIlporation was the owner of a large amount of real estate now embracing th.e't@wn-site of' Arkansas City; but they deny that, at the time of its dissolution, it had any real estate or other property undisposed of, and aver that there is no property or assets to be accounted for or distributed. The respon:dents' in answer to interrogatory No.4 of complainants' bill, allege as follows: "In answer to interrogatory four, said defendants say that at the meeting held on the 31st day of July, 1871, when the final dividend was made of the property of said corporation, the follOWing resolution was passed: 'ARKANBAS CITY, KANSAS,July 31,1871. Arkansas City 'fown Company met at the school·house. Arkansas City. On motion, resolved, that the Jots in Arkansas
NORTON· II. KELLOGG.
488
City be divided as follows: To each original Interest, 210,-divided into thirty certificates of stock, each drawing seven lots,-and that the excess of lots, remaining after the givinK of the lots already voted, remain as the prop. erty of the company, to be used under control of the executive committee of the company for the benefit of the town. Adjourned.'" The respondents further allege: "That no money was in the hands of the executive committee to pay the taxes upon said lots, and no provision was made whereby the taxes and the expenses of conveying said lots. should be met and paid. That thereupon the' executh-e committee entered into an arrangement with the mayor of the town of Arkansas City, whereby said lots should be conveyed to him, said mayQr, and to his successors in office; and that the taxes upon said lots, and the cost of conveying said lots, should be met and paid by the said mayor; and that said lots should be con veyed in accordance with the purpose for which the same were intrusted to the executive committee to be conveyed, namely, for the benefit of, and for the promotion of, the interests and welfare of said town, free of charge, to such persons as would come in and establish them· selves and settle in said town, aud would improve said property, and would thereby aid and assist in making the property owned by the shareholders of said town company more valuable. That said conveyance was made, as appears copy of deed hereto attached and marked' Exhibit A,' and that said trust was duly, honestly, and faithfully administered. in accordance with the best interests of said town company, and for the best interests of said towri of Arkansas City, and to the highest advantage of the members of said corpotation, by the said executive committee; and the mayor of said city conveyed said lots, by and with the advice, counsel, and approbation of said executive committee, and in due performance of the trust devolved upon said executive committee. Said defendants. further answering, say that all of said lots hl\v,e Leen conveyed to divers and sundry persons for and in consideration of the guarantied location and aiding in promoting, and building u.p and advllhcing, the fortunes of said Arkansas City, and. have by said several grantees been accepted in good faith, who have paid therefor by making last. ing and valuable improvements upon said property, and by personally aiding, assisting, and extending their means to the promotion of the growth of said city, and have largely enhanced the value of the property owned by the memo bers of said corporation:" A copy of the deed from the executive committee to the mayor of the 500 lots, in trust for the use and benefit of the city, and dated October 29, 1875, is attached to the respondents' answer. ThisCRse is submitted on the bill and answer; and hence the allega'tions bill, and the admissions and averments of the answer, sent theWht:llecase. It may be assumed that the whole question turns on .themntterof the lots placed by the corporation at the dieposal of the executive committee for the benefit of the town. It does not appear that there was any other property of the corporation on hand at the time of its dissolution. It is plain there be no conclusive adjudication as to the title of these lots without the presence in court of the purchasers 'of the 'Same under the mayor's deeds. . It is doubtless the purpose. of the complainants to get matter in shape,by this proceeding, sd eachshilreholder, or the officers of the defendant corpoP'tion for the whole, may bring suit at law against the present holders of the property to determine the title.
'or by'tetij,Qvingobstacles to a proceeding at law.. , It is'!iVerrea1ti'y-the'comphiinants that the executive committee did not properly execute the'trust'imjJosed on them, and properlYJ6JtllcI1ted ,in forui.. ,WI,ether the execu,tivecommitteei failed 'trust, within the of theresa. (lution. e,orpQrators, .. ' lots were tp be .l;l.$ep,;'uJ;J.4er the .pf 1 JlU ,o( jtg,e .cq;rnp,a.ny for t. of the ,nereJE! ; wIde: dlSCrmWQ,/Uldpower commIttee. /fhey', were ,toWle. the lots JOtf.'the benefit of the town. < They might sell them at any: pdce they salWl themaW1ty;"orcould make k\ich'tlillj!6Sttl"'d( them as ih the interest$ the tow ll It is by' unqer" tl\e ,9U;CUInl;jtances, object by turningtbe .lQts over to tbe.city,l:t8elf. Itsurely . :was 'better than to allow them to :be:sold for taxefwatld consumed in the answer that the tract ,was probably extended' anq' cQriveyed, the mayor, t(1 made, v:alUabl,e 'fwprovements, ,and, they asSisted in the town, !;ltc. ,::rt',iS::p:loOO questionable ,whf'lther the deed tpthemayor,colild be legallyexoouted in the manner it was, by the ex... ileutivecomp-littee wane. Under!seet,ion 4, c. 22, Gen. St.1868, it should the aitd attestedbytneseal of the cor... )Omtidn., .: that 1887, c.11!); However that).1lay he,ii the iIi execp,ting; the wasQ\lly ,in the manner and form of mak,. ing the deed,. and ,not in the purpose sought to be ,attained, there can be little dotl1)t but-;.thatequity to 'Protect the purchasers, and compel a proper conveyance. Walden v. ShWrub';101 U. S.583; P.ekh13.Tben,sofa:r as this defect is avail officers, ,or shareholders ofthe company. Indeed, when. we, cOlil.fliderthe .long time which has elapsed that, C9QVtU'ance was .madel' being about 13 yoom, without objecti.QD ,(rotn, valuable interests df:other ,parties and ,grown:.up Qn that foundation of-title, there in favol'.oftbeo.omplainants to induce the court minute 8;ltl:1I;UinMion;bf, IQr to applya.lltrickconstruction e;ltecpt#;lA. pf this. power "by 'the'. ve The rbill :c;omplaJ,.n$.Ots will haVEl' ;tOthe dismissed. ,,' .·
otaltfRtV14:bddle!forthls tJOl1drtD dnH611.'ny dect!ll!i iOltbe-dall6 i£riil.lip!111aw. or 'equit1.Jde!itte raby:1:>liti:'efiffrtilill'itf mdr'will a court, aid: parties i;riL an uncorlscionable
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GREEN et al. . November 14, 1889.) I . '. .
.. (Otrcuit Oourt; D. 1. MORTGAGBll-DESCRIPTION .0J' PROPERTY.
Wberila mortgage shows thlJ,t the parties reside in tile state, and describes. the land according to the United States government survey and legal subdivisions, but does not state the COUJ;lty and state where the land is situated, it will be presumed to be in tbe state mentioned, and the mortgage may be foreclosed by advertisement. S. SAME-FoREOLOsuREmroER POWER-AMENDMENT OJ' LAW. '. . E;ale and redemption under a power in the mortgage are governed by the law:\n .force when the mortgage was executedt are notll,ffected by a subsequent act extending the time of redemption, or maJring the time of redemption run from the fiUng of. notice of tbesale Jnlthe registry of deeds. . f'
InEquity. On complaint to set deed. J()hnIJ·.Ie W. lJ. Sanborn; for complainant., W.·,E.IIale, for defendants.,
,!';:
NElSON, J. Suit is brought to set aside a quitclaim deed, and delivered by the complainant, J. Allison Smith, to John Greenet al.,· June 15, 1886,on the ground of fraudulent representations, (which complainant believed wel'etrue and relied upon,) made hysaid Green and the other defendants acting for him and on his behalf. Tne'land conveyed is described as lot No.4 of the S. W. t of section 28 1 town" ship 29,range 24, located' andeituated in Hennepin county, iIi/the state of Minnesota. Testimony is taken inregar.d·tothe alleged.t'r$.ud,l but, in' thee view taken, tbe conclusion of law,entitling the defendants toa.deereedismissing the bill, upon the stipulation that the following facts aretruej renders it unnecessary to consider thatquestion. The determination pf the suit rests upon the validity oLa foreclosure by ndver;' tisement·ofamortgage,and the questions presented are: (1) Is atHn'; strum4Jnt in the form ofa mootguge, which describes the land accurately,) aeoordingtothe survey of the government of the United States; andfr(>m that des<irlption it appears the land is located in .Hennepin county tiD tbetenitory(now state) of Minnesota, not so declared in the in;" strument, such a be foreclosed by advertisement and sOld! according' to the i laws Qf the. territory (now state) of Minnesota,: and 'byt such sale does a legal' title become vested in the purchaser? '(2)Ho'8' &uch mortgage'been duly; and legally so as to bar the equitY. ofredemptidn:,oand vestSi title'beforetheexeaution and delivery:dHhe quitclaim deMiirom Smith to: Gieen?, '; " . ,',1m following, are the .. On: April' 22; :1:857 the defendants, was the owner in fee of thefollowing land: Lot No.4 of the S. W. t of section' 28, 24, according to the survey: of: the: United States/go"lernment,and' contaihing eated in county of Hennepin andt.erritOi'y (how state) of.Minnesota., Qn"tbat'dayGreen,sold and :conveyed,theland :to Snyder, MoFar.lane,. for libe deferred: pay.. and Cook, ·takirig,amortgageon,the land as meut of·$2.914.10 t , part ofth:e purchase ,TJnis . faiiled