268
FEDERAL REPORTER,
vol. 52. CO.
HACKETT
et al.
II. MARMET
(C4rcuit Co'Wl1 of .4ppeals, Fourth O£reu,tt. October 11,1892.) No.H. 1. EJEO'l'MENT-TITLE TO SUPPORT-ADVPRSE POSSESSION AND PAYMENT OF TAXES.
2. LANDLORD AND TENANT-ESTOPPEL--DENJAL OF LAKDJ.oRD's TITI.E. 8. SUfF:-LEASE-NoTICE TO QUIT.
4.
The Marmet Company was Incorporated under the laws of Ohio, and permit· ted to do business In West Vlrgini,a under that name, according to the laws of the state. It customarily used in West Virginia. the name of the Marmet Mining Company, and executed a lease under this misnomer. Its identity, however, appeared both' by proof and admissions. Held, that the Marmet Company could an action ot ejectment under the lease.
In Error to the Circuit Court of the United States for the District of West. Virginia. At Law. Action of ejectment by the Marmet Company against P. J. Hackett and others. Judgment for plaintiff. Defendants bring error. Affirmed. Statement by HUGHES, District Judge: This was an action in ejectment, instituted and conducted under the practice in such cases observed in West Virginia. The action was brought for the recovery of lots of ground and houses upon them, contained in a tract orIand in Putnam'<jlounty, in that state, embracing 4,500 acres, described in the declaration. At the trial of the cause, the defendants below: elected to sever, and ,pleaded not guilty I severally. It was afterwards agreed upon the record that the case against P. J. Hackett should be tried singly, and thatthe final judgment in that action should be entered in each of the other cases,-about 120 in all. The defendants below had been miners in the employment ot'the plaintiff company, as such occupying houses on its property, under leases the same as that under which Hackett held. That lease contained the following stipulations: "This lease shall terminate and close whenever the said Jessee, from any cause, ceases to work for said company. The said company may terminate this lease at any time by giving the said lessee ten days' notice in writing titat the same shall end and terminate upon some day nallled in such notice, and upon the day so nam JJ in said notice this lease shall terminate and end, and the said lessor may re-enter and take possession of said leased premises without further notice or proceeding. The said lessee hereuy agrees and promises to pay to the said Marmet Mining Company the rent, as aforesaid, monthly, and also agrees that such rent may be withheld by said company
HACKETT ". MARMET CO.
269
out of any wages accruing to him from said company; and he also agrees to deliver possession to said company of said tenement building andappurteDances upon the termination of this lease. whether the 8ame is terminated by notice or by his ceasing to work for said company, as hereinbefore provided, or in any other manner whatever; aDd under no circumstances and in no event shall this lease be construed to be a renting from year to year. It being the purpose of this lease to secure the said company the use of said tenement building and appurtenances for the persons in its employ. the said P. J. Hackett enters into this lease with a full understanding of this purpose, and admits its justice and propriety, and also recognizes and admits the right and power of the said company to terminate this lease in the manner hereinbefore provided, at any time and for any purpose it may choose, and hereby agrees to all provisions of the foregoing lease." The lease was dated June 22, 1886. It was made in the name of the Marmet Mining Company. Prior to the month of June, 1885, the Marmet Company, the 'plaintiff in this cause, leased of its subsequent vendors the premises mentioned and described in the declaration in this cause, .and as such lessee, and under the name of the Marmet Mining Company, operated said property as a coal property, and continued said operations in said name until the deeds aforesaid were executed to it, and thereafter continued said business in said name, as owner of said property , and still does so. The Marmet Company derived title through Henry J. Raymond and Elisha Riggs, and through the Averill Coal & Oil Company. Henry J. Raymond and Elisha Riggs, at the date of their deed to the Averill Coal & Oil Company of October 20, 1866, had good title to the premises therein described. Said premises are ofvalue greater than $2,000. The plaintiff, and those under whom it claims under the deeds aforesaid, are and have been, by its agents and tenants, in the actual possession of said premises ever since the date of said deed of October 22, 1866, and have paid all the taxes charged or chargeable thereon since that date, to wit, the taxes for the year 1866 and each year Rince. They have had possession and paid taxes for more than 10 years preceding the institution of this suit. Since the date of the deed of December 22, 1866, the plaintiff, under the name ofthe Marmet Mining Company, has been largely engaged in mining and shipping coal from 'said premises, and has had on said premises, far the use of its miners and employes, many houses, one of which houses, to wit, house 52, is now, and was at the ()ommencement of this suit, occupied by the defendant P. J. Hackett. The plaintiff, under the name of the Marmet Mining Company, using said name to distinguish its transactions and business in West Virginia from its transooti01'18 and, business elsewhere, leased to its miners these houses, and, among them, leased to the defendant P. J. Hackett, as one of its miners, the house 52 and premises set out in the written lease aforesaid, dated June 22, 1886. Hackett signed said lease at its date, and delivered the same to the plaintilf, and has ever since occupied said house, and paid to the plaintiff, under the name of the Marmet Mining Company t under said leaee, the rents' therein provided for up to the 1st
1891, the minthe def\mdsnt'Hackett, struck,and ceased to work for the ti.I·.. . ,i.n.g b1.1S1 nesS .:.a.s.: a.,ro.' .aid.· , bee.au, se.:.o f the plaintiff's refnsa.l to . .· .. of and frbtn,2 cents per hushel'to 2t .91'lIttis whereupon the plaintiff, by the name of the Marmet Mining. QOD::\pany, gave to defendant :aackett more than 10 clays' fioticeto terminate the lease and tenancy, and to quit the premises, which notice was inwriting,but the said defendant refused to vacate said house l;lrnCl pternises, and still occupies the same. Said notice was given in, has heen paid by said defendant for said prel;11ses "since' 'January I' 1891. The plaintlff has complied with all the requirements of the laws of West Virginia authorizing foreign corporations to, hold property and.do business and prosecute suits in that state. Ontb(3 part of the defendant below it was proved affirmatively that he had entered into the possession of the house and Nemises in question in this suit in June, 1885, as the tenant of the plaintiff, the Marmet Company, and ,that he held and ocoupied the same as such tenant, and paid the rent thereof to the said company as such tenant prior to the date of said given in evidence in tbiscase by the plaintiff, during all of which time he was mining coal fortheplaintiffj tbat after the date of the lease he continued to mine coal for the Marmet Company, and paid bis rent for the bouse and premises to that company upio the time he quit work for said company; that the plaintiff's agent informed him at the time he executed the lease'that he should riot work for the plaintiff unless he executed the same; and thereupon he did execute said lease, and thereafter paid the rent thereof to the plaintiff, as 'aforesaid, up to January I, 1891; that ,he. did not, in termsirefuse to work for the plaintiff, but did voluntarily cease to so work about January I, 1891, because the plaintiff refused to increase its, miners' wages for mining coal from 2 cents per bushel to 2t,cents per bushel, !ind that he never received any notice to quit and surrender the premises in question from anyone, except the notice in writing given in evidence in this cause by the plaintiff; tbaUhe plaintiff paid him for all the coal mined by him up to January I, 1891, and that he had not worked for tbe plaintiff in any way since that date. Arid\ the plaintiff not objecting to the evidence and proof so offered, the same was given to the juryintbewords and figures stated in said offer. ;Dha: defendant further proved that in a suit in the circaitoourt of Putnam county,W. Va., brought by R. N. Lilly against tbe MarmetMilling Company. the plaintiff here, the Marmet Mining "Complmy, filed a plea in bar of said suit, duly verified, that there was no such corpo:rationas the Marmet Mining Company·and that said suit was thereupoh dismissed without trial. In the descent of the property embracing the!leased premises one Elisha Riggs was a holder of some of bonds'secured by mortgage upon it at one stage of: the descent. Riggs died,<The foreclosed. Riggs1 executors were amonK those IWhopurchasedatithesale in' foreclosure. Deed was made to them,as 6:li:ecutors, ',among '0ther gra.ntees; and these executors,as
HACKETT 11. liAR MET CO. :
271
such, united with other grantorS, afterwards, in conveying the property to the MarmetCompally. It is objected on behalf of Hackett that no power by will to sell real estate is shown by the Marmet Company to have been given the executors of Riggs, and therefore that no title passed to that company as to the undivided portion Of the property which rep. resented the bonds belonging to the estate of Riggs: Other objections to the right of the plaintiff company to recover in this suit, based on other facts in the case; are stated as follows in behalf of the plaintiff in error: ' "The court erred in overruling the objection of the plai ntiff in error to, the reading in evidence to the jury of the lease 4ated ,fuDe 22, 1886, executed by the Ma,rmet Mining Company, by W. W. Adams, casbler, to the plaintiff in error, by the defendant In error,and in permitting said lease to be so read in evidence to the jury, notwithstanding said objections. This lease was not the lease of the defendant in error, the Marmet Company, the plaintiff below, but it was the leMe of an entirely different company. The plaintiff in error was not, therefore, the tenant of the defendant in error, but of the ¥armet Mining Com pany. And the oral evidence improperly permitted by the court to be given .in connection with said lease against the objections of the plaintiffin error did not make the'said lease proper evidence in this cause. The defendant in error, the plaintiff below. is an Ohio cor(Joration, which, but for the statutes of the state of West granting the privilege to nonresi. flent corporations, could not do business in that state. 'rna corporate name of the defendant in error, as by its articles of incorporation, w,as aJ;ld is the The Marmet Company. The several papers and certificates filed byit for the. purpose of acquiring the right under the provisions of said statute to transact its corporate business in 'Vest Virginia all show its COl'llOrate name to be the Marmet Company. And conceding, for the purpose of argument only. that the misnomel' of a resident corporation in pleading 'might not ,be fatal to the pleader, it does not follow that a foreign corporation can obtain authority to transact its corporate busiqess.in the state of West Virginia in its proper corporate name, and then, instead of so, as matter of convenience, assume another and diffel'ent name, and transact its corporate business in that name, which the defendant in' error in this case, by its own sh{lwing, did. "The court erred also in overruling the objections of the plaintiff in error to the reading in evidence to the jury by the defendant in error of the notice of the premjses to the plaiJ;ltiff in error to quit IlInd surrender the. occupied by him, signed, · Marmet Mining. Company. By Geo. W. Guysi, Superintendent,' and of the return of the service thereof, and in permitting said notice and the return'of the senice thereof to be read in evidence to the jury, 'notwltbstanding the If the theory olthe defendant in error in this case is correct, the notice to quit should have been in the name of the Marmet Company, and not in the name of the Marmt't Mining COIDpany. And the service of this notice did not entitle the defendant in error to. aver· diet for the recovery of the possession of the leased premises. And the returnof the service of the notice was not sufficient in law, (1) because it did not show that the notice was served on the plaintiff in error in the county of Putnam; (2) it did not show that Goff, whose name is signed to said return, was eitber shel'iff, deputy, sheriff, or constable of Putnam county; (3) and said return is ,not verified, by affidavit."
O. O. Watta, for plaintiff in error.
272
vol. 52.
for defendant in error. Before BOND, Circuit Judge, and HUGHES and SI!IWNTON, District Judges. HUGHE$, District Judge, (after stating the facts.) thus appears that below on three the plaintiff in error excepts to the judgment of the grounds, viz.: First, a failure of the defendant in error to prove power to convey real estate in. the executors who united with other grantors in conveying the land embracing house and lot 52 to the Marmet Company; second, irregularities in the notice to quit given to the defendant below; ttnd',tllird, and chiefly, the variance in name. between the Marmet Compaqr, ie.n6minalplaintiff below, and tpe Marmet Mining Company, . of vvhqm the deferidantbelow was llJlemploye and tenant, .and the tenant ill ip0SSession of house and lot No. 52, Doubtless the first two objectWbs;8re based really and chiefly upon the variance between the name.Of 'tne plaintiff company shownby'the record 'sndthat of the cornpa.n.·y 'w',9tCh made th.e ·1.ea,8,6.' .and o.fwhb HaCk.ett held as l.essee after ., .. . . ... . ..m. J,ulle, The two objectIons would not have pad.pqt been used. . But they wlll be dealt wIth as If nO suall.variance appeared. . 1; i ,The ,first exception cannot be sustained. It is immaterial to this case whether the executors of Elisha Riggs had or had not power to unite ina Cdbveyance of 1'eal'e8tate; for, indepepdently of the paper title, the (Jompany prQveq a title by possession, and the payment of than 1{) years next preceding the institution of this suit, a tenure which a perfect title under the laws of limitation in force inWes.t Virginia.. "Uninterrupted, honest, and adverse possession prescribed by the statute' not only gives a right of possesfor sion(in Virginia Virginia)wnich cannot be divested by en" try, buta1!3o'gives a.right of entry 'and of action, if the party is plainff, which'w.ilJ enabJe to recover, even against the strongest proof of a title', which, independently of such continued adversary possession, would bea better title." 2 Minor, lnst.; Middletonv. Johns, 4 Grat. 129. This exceptiollcanrl6t· be entertained, moreover, for another reason. below is in this case estopped from .bringing in question The the title' of ,the plaintiff company to the premises which he holds from it. The relllti()nof landlord and tenant between the plaintiff and the defendantbelowhavingbeen not only established by the plaintiff, but unqualifiedly admitted and affirmatively proved by 'the defendant below, 'Objection from this tenant to this landlord's title cannot be entertained by the court. In such a case "the title of the lessee is. in fact, the title .of the lessor.' . Re cornell in by virtue of it, hol\l.s by virtue of it,. and justify bis possession.' .,It is a part of the rests uPQn i;i to;Inaintain very essenCe iof.t4e.contract which he claims. that the paramount ownership,ofthe lessor shall be acknowledged during the continuance of the lease, and that possession shall be surrendered at its expiration. He cannot be allowed to contradict. the title of his lessor without dis-
v.
MARMET CO.
273
paraging his own, and he cannot set up the title of another lrithout violating that contract by which he obtained and holds possession, and breaking that faith which he has pledged, anel the obligation of which is still continuing and in full operation." Blight v. Rochester, 7 Wheat.
547.
2. The exception of the plaintiff in error to the service and the return of the notice to quit given him by the mining company cannot avail to invalidate the judgment below, for, without regard to any notice in writing at all, the plaintiff below had full right to maintain its action. He admits in his defense that he voluntarily ceased to work for the company" and the lease provides in express terms that the lessee shaUdeliver possession, "whether the same is terminated by notice or by his ceasing to iwork for said company, as hereinbefore provided." In the face of an admission that he had voluntarily ceased to work for the company, thereby violating the express stipulation of the lease, it is immaterial whether any notice to quit was given at all, and whether its service and return were regular or not. This objection to the judgment of ,the court below must therefore be overruled. . . 3. We'come now to the point which is the chief reliance of the plaintiff in error, to wit, that whereas the evidence produced at the trial went to establish title ill the Marmet Company, the plaintiff of record in the court below, yet the lease on which the action is founded was made by the Marmet Mining Company, the defendant below being tenant of and holding from the Marmet Mining Company, "an entirely different company;" and therefore, that proofs of the title of the Marmet Company were improperly admitted in evidence at the trial of a suit for possession founded on a contract between the Marmet Mining Company and its lessee, the defendant below. The question presented by this exception is, therefore, whether a corporation is limited in its transactions strictly to the use of the name under which it was incorporated, and whether the use of such a variation in name as that of the Marmet Mining Company instead. of the Marmet Company ipso facto vitiates its contract as to the company of the corporate name, and makes it in law necessarily a differept and distinct corporation from the chartered one. A long line of authorities negatives such a contention, and establishes the proposition concurred in by courts and text writers, that a misnomer of the corporationdoes not invaliflate a deed if it can be collected from the face of the deed,aided by extrinsic evidence, what corporation is intended; the real test being not identity of name, but identity of the corporation itself, or capability of identification. Mr. Dillon, in his work on Municipal Corporations, expresses the law of the subject as accepted by the courts: "A misnomer or variation from the precise name of the corporation in a grant or obligation by or to it is not material if the identity of the corporation is unmistakable either from the face of the instrument or from the averment and proof." Identity of name, therefore, being unnecessary, the only question in the case under consideration is as to the identity of the Marmet Mining v.52F.no.3-18
CGmpany: iwith the Marmet Companty,., . This identity,iS'J-esta:blished by the plaihtiff in error.hifnself.Heproved affirmatively at.tbe:trial"that he'ibsd:entered into the' possession of the, house and. premises in question in this in J<I1ne,1'885, as the: tenant of the plaintiff, the Marmet Company, and that he held and occupied the same as such tenant, and paid the rent thereof tQ [the said COll1panyas such tenant" prior to the date,of the lease{June22:, 1886] given in evidencein thisctlse by the plaintm'; ,* * *, that after the date. of said lease [which was from !Mal'metMiriing Company] he continued to mine coal (or the said Marmet (iJompany, and paid his rent ,for said house and premises to said conipany,[his lessor being now the Marmet Mining Company,] up to the quit ,work for aRid company., * January 1, 18,91; * *. *,llndthat he never: received: any notice 'to quit and surrender the the notice in writing given inewdence"in thiscause..by,.the plaintiff;" the notice, be it observed, havingheen .given by the Marmet Mining Company, and the plaintiff of!reoord,of which 'bespeaks being the Marmet Company. Throughout his evidence given in his defense' helspeaks of and treats the plaintiff MarmetiCompany as identical with his: lessor and. employellunder the lease ',0£Ju06, 1886, the il\1armet Minilig Company, Rl;lone and the same corpOration:; It was·,botnl proven: by the plaintiff. company and admitted by tbe. plliintiff,inerl1orthat the company was.in possession of the premises embraCing house and lot52¥,and extensiVely operated them as a coalpropertyfrom as; early a.date' as 1866; that the. plaintiff in error wasin,jts employment as well before of June, 1886, as afterwarderdo,wn to 1891, receiving wages from land paying rent to the Marmet COlD.pany ,before arid the Marmet.Mining Company after .Tune, 1886, as one and the same corporation. NoHinly is this identity of the corporatioD"reeognized throughout: by Hackett, himself, but it is apparent also· from written evidencein the case. Forinstance, the first clause of Hackett\! lease from the company ,of June 22, 1886, uses these words: . "The. Marmet Mining corppany doth:heteby lease to P. J. Hackett, now [that.istosay.:before thelease was entered into] initllemploy, the tenement building, markeq and IUJ,p.w,n as · 52,' upon ,tlle premises and coal propvrty of the. J,{.llym9nd Oi,tycoal property,no\V in tile possession under the control of said Marmet Mining do In pany. " . The identity Qfthe,h{armet Company with the Company being thus estahlisheq beyonda}l doubt,. the. Qbjeation of the plaint,iff in t,o the judgment of the court below, foppded UpOll this variatioQ.: in thei,use of nllllile of the corp()ration, ca.nnot, qe sustained. ,The below mllst therefore ,bl'llffirmed.. ,
*
,'.
"".
,
l1NI'J:E,D t STATES 11. NEWTON. , . .',
276
UNITED STATES ". NEWTON.
(DiBtrlct Court,
'8. D. Iowa. May 26, 18ta.)
L
CoNllPmAllY TO DlIll'ltAUD UNITIID SUTIIS-FRAUDULBNT INCRBA8B OJ' MAILS DUll ING WIIIGHING PIIRIOD.
railway post route during a,period fixed by, the postal authorities for weighing nch mail matter, as a basis for ascertaining the additional compensation to be paid the railway company.) thereby offending against Rev. St. 5 5440, which provides that if two or more persons conspire to commit any offense against, or to defraud, the United States in any manner, or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties thereto shall be liable, etc., before the jury can convict they must find the defendant guilty beyond any reasonable doubt; and tbis includes finding from the evidence (1) that the conspiracy charged existed, (2) that the overt act charged was committed in further8.llce of the conspiracy, .and (8) tbat dllfendant was one of the conspirators. S. SAMII-BBNIIJ'IT TO CONSPIltA.TOltS.
to defraud the United States by mailing a large quantityot old newspapers for the purpose of fraudulently inoreasing the weight of mail matter, (transported over a
On separate trial ot one defendant. on an indictment against two for conspiring
To constitute such conspiraoy it is not essential that defendant, or any other of the alleged oonspirators, should have derived any peouniary benefit therefrom; but any benefit so 8()CruiJ!g therefrom may be considered by the jury as a oiroumstance in determining defendant's relation to the acts committed.. To constitute the statutory o1!enSll, it is not necessary that the alleged OOllspiracy should have been succesBful. , Mere suspioion or bare knowledge by an alleged co-conspirator that defendant was attempting to defraud the United States is not suffioient to make suoh person a party to the attempt to defraud. and to sustain the charge of conspiracy. To constitute a conspiracy the evidence must also show intentional partioipanoy in the attempt todefraud; and if tbe evidence shows that suohalleged co-conspirator had knowledge that defendant was mailing over said post route suoh newspapers with intent to defraud the United States. and suoh alleged oo-conspirator. with a view to 6ssist defendant therein, remailed suoh newspapers over said post route, a conspiracy to defraud United States Is thereby proven, and by suoh remailing such alleged co-oonsplrator becomes an aotive party to suoh oonspiracy. OJ' ACTS OJ' OrellR CONBPIRATOR.
ll. '-
S.um-SUCOIIS8 OJ' CoNSPIRACY.
5.
SAME-PLACE OJ' CONSPIRACY.
If the fraudulent mailing was committed within the judicial district charged in the indiotment, it is immaterial where the alleged conspiracy was formed, or whether or not the parties thereto. or either of them, were ever within such district.
.
8.
SAlIlE-TIMII OJ'
It is not necessary, to justify a verdict of guilty, that the conspiracy should have been formed and in full existence prior to the weighing of suoh fraudUlent mail matter. It is sufilcient if the defendant and any other person at any time during the weighing formed a common design to defraud the government in connection with fluch weighing, and that then tile defendant or suoll otller person oommitted an overt act in llOnnection tberewith.
7.
BA-MII-PREVIOUS AOTS OJ' CoNSPIRATOR.
If, prior to the formation of such common desigu, defendant or any other person had been doing the very act whioh afterwards,oy being committed to e1!ect the c(1nspiraoy, ripened into the statutory o1!ense, a verdict of guilt!' would be warranted.
BAMII-ACTS OUT 01/ DISTRIOT CIL\RGED IN INDIOTMBNT.
Evidence that the newspapers, the fraudulent mailing of which within the district the overt aot charged in the indictmen t, were rewrapped and remailed over the post route in question, from a place without the distl"lct, by an alleged co-conllpirator, is not competent as proof of such overt act, but may be considered &.IiI showing. the nature, extent, plan, and operations of the conspiracy, if oneexillted. '
9.
SAME-ACTS01f EMPLOYIIS
If suoh,D;llilling was done servants, or agtlnts, &II snoh, and not as parties tO,or members or abettors of, tbe oommon design, they will not be deeliledeo-conslIU·ators,·, '1101' Will sucll mailing amo unt to all overt ac'-