'of the' metiIbers, or unless the corporation is 'one which is 'invested by the state with special privileges, incorporation is only valuable as a mode of organization which may conduce to the convenienoe of business management. Such are the facilities afforded by the laws of most of our states that the privileges of corporate organization are within the reach of almost any business 'Mncern,and can be obtained as a matter of course for a trifling outlay: It follows that a representation that an association is incorporated, without more, is no more than saying that it has been authorized by l'egislative authority to do what it could do practically, and what an mfinite variety of associations are doing without such authority. It is true that, as·a general rule,the shareholder of a corporation is not held to'the'liabilities of a member of an ordinary partnership for the debts of the concern, and a purchasei' of shares does not expect to incur such a liability as a consequence of' his purchase. But it cannot be affirmed that a purchaser of shares'w:ho buys without inquiry as to the character of the corporation of whichhe1proposes to become a member, or as to the nature of the liability of the stockholders, has any legal right to complain, if he finds, after he has purchased, that the stockholders are liable for all the debts of the concern. No authority for such a proposition has been cited by counsel. If it can be maintained, it can only be done by importing an implied warranty against such a liability into every sale of shares ina corporation. No such exception to,the rule of caveat emptor is known to the law. Having reached the conclusion that there is no ground for the relief sought by the complainant, because there was no deceit or misrepresentation as to ll.ny matter of substance by which he was induced to purchase the stock, it is not necessary to consider whether he acted with sufficient promptitude in attempting to rescind, or whether upon other grounds his case such as to preclude belief. The bill ia dismissed.
SMITH V. CITY OF PORTLAND.
(Oircuit Oourt, D. Oregon. April 7, 1881.)
1.
DEDICATION-EVIDENCE OF-PLAT ALTERATION.
Upon an issue as to whether College street, in the city of Portland, extends through block No. 138. by virtue of a dedication made by the original owner of the premises. who platted a tract, including the block, as a part of the city, held that, although the record of the plat shows that, at some time, a line, since erased, was drawn across block 138, thus representing College street as running through the block, yet the testimony of witnesses, and the appearance of the record itself, satisfactorily demonstrate that the line was drawn by mistake in recording the. plat, and was erased at the time, and that the erasure was not the result of a fraudulent alteration, made since. 1
J Respecting the dedication of a strl*'t to' public use by makinll:and recording a plat on which it is designated, see Fulton v.rI'own of D9ver, (Del.) 6 At!. Rep. 633 i Donohoo v. Murray, (Wis.) 22. N. W. Rep. 167; Quinn v. Anderson, (Cal.) 11 Pac. Rep. 747, and note; San Leandro v. Le Breton, (Cal.) 13'Pac. Rep. 405.
SMITHt1. CITY OF PORTLAND.
785 "
9.
The sale, by the owner of the tract platted, of lots not bounding, on College street, by reference to other maps, not made by him or recorded 'aB, his dedication, would not amount to a recognition of the correctness of those maps in, regard t9 C9llege street, and, although College street were represented on them anunning through the block, a dedication should not be inferred therefrom, the aftlcial map showing the 'contrary; especially as against purchasers who purchased and madetaluable iinprovements, relying On the latter. To a suit brought by a truBtee to enjoin a city from improving asa street, private property belonging to the trust, the Ce8tui, que trust need not be made a party, as the relief sought in'no way affects the relations of the trustee and · QUE TRUST.
T(] <MAPS.
S.
.. PLEAJ)ma-'--VAluANClIl-SUIT IN CAPACITY OF TRUSTEE.
If, ina bill in equity to, enforce the' rights of a property owner, the plaintiff .is to be the holder of the legal 'title in trust for certain other per'Bons,ltis-Immaterial that his evidence shows that he had bought the interest _ before the filing of the bill, and iB; therefore, in Jeality, the , abBolute owner. Before SAWYER, C· .i.
,
Jo1m {)atl:;,'fI" for · . A. I:L and Cha8. "H',CaBffl,j,for defendant. ": ' -
. ,
O. J. Thisi& a in equity to enjoin the cityofPQrtland, f.rom improving, lj,S a street. what is claimed by the city to be a part of a pnbliq street; .and by compilloinant not to be a street, but private erty owne4by him. The question is whether the land is a part of lege street, ora part of block 138. The'land is a part aBhe donation claim ot Stephen Coffin, patented to bim by the.' 'United by Coffin laid <;>Ut into a part of the city of Portland. On December 4, 1867, Coffin filed a map of that portipn of the city laid out on his4onation claim, duly executed and acknowledged by him, in the county clerk's office of Multnomah county, which map was duly recorded in Book H of on pages 158 and 159. This is the only map of the. city filed by Coffin, and is the public record <>f his dedication, and, presumptively, is the map to control the location ,of the streets, blocks, and lots of the city, so far as it lies within the aries of his land. Unless Coffin either dedicated this part of land in question for a street, or the city has otherwise since acquired the title for that purpose, by purchase, condemnation, or other lawful means, it remains private property; aqd the city cannot appropriate or interfere with it without, making due compensation. On Fet>ruary 11, 1869, about fourteen .months after filing t4e plat,Coffin conveyed to Jeanette Davis "fractional block No. (138) one hundred and thirty-eight, as designated in .recordedmap of S. Coffin's land claim, as recorded in Book H, on pages.158 and 159 of the county records of Multnomah county, state of and situate in the' city .of Portland;" being the block embracing the land in. unlesa there was a street that covered it. , It :will be seen that the 1:;>lock was conveyed "as designated in the cordedmlLp." On the recQrded map, as it now appears, College street does not ext\'llld across block 138, or between bloclts 138 and 139,and SAWYEB,
.
736
." .' FEDERAL' REPORTER.
this strip qf block. 188, the block<9,!l consettle theques-, veyed by Coffin:. If there were nothmg else, tion, because, according to the map dedicating public streets, thel1e is no street there. and the land' in on thislDap of block 138. . The Gomplainant,. by,. vaH9us ,mesne conveyances, has become vested with the title acquired by Mrs. Davis. Soon after the conveyance by Coffin, his grantee built a house in what is now claim edtp be the'street; aq,d it has been occupied by the owners of the blo.ck ever since it was built. The record shows that at some time a line was drawn across block 138, which would show College street to fun through the block. This has been ,It was claimed by the city that this erasureocqurredwithin the last, two yeats before the bringing ofthe suit. and that the; record has thus been,mu.tl1ated. But it was pI:oved beyond all' doubt, as it seems to me, by! reliable witnesses, among them surveyors and others, who have had occasion from time to ,tilne.to ex.atnine the record carefully, that it has been in the condition now shown for many years. By the testimony of the witnesses, the appearanpe of the record the figures itself, the character ofJheink numbering the blocks, and other circumsta:nces, I am satisfied that this drawn by mistake in recording map, at the time, and huihMred after the'erasure'was'made.' Theul1stake would be'quite likely to bccur,'as the block is on the"edge of Coffin's land,where Hjoins a line 'beyond which the direction of 'streets is cha.nged,' so that at the· in;. tersectiongores are fOfmed. Block 138 is one of these gores, and not a full block. ' .;.", If College street were run thr611gh on the broad' side of the block, it would 'leaYe a small part, aimost: a _triangle. In laying down his rule on the southerly side of College street, by the copyist, the southerly line of Coffin's land was probably covered,and, withoutnoticing the situation, the line was probably run acro'sS the block,ll.nd, when discovered, erased before numbering. There are some other blooks, on that line of Coffin's claim, similarly situated, in which; as in this case,the streets are not extended through the gores. lam satisfied that this erasure was made as a correction of a mistake the time the record was niade, and that there has been no mutilation of the record as then made. The city has undoubtedly taxed this piece of land, from time to time, as a part of block 138 j and it has' been more than once assessed as a part of said block by the city for the improvement of the adjacent property, and such taxes and assessments have been paid by those claiming the property through the said conveyances from Coffin, and who have always occupied it. There is some teslimony, more or less improbable, in view of wellestablished facts, that the house was built by thecOllsent of the city officials, with the understanding that it -should be removed when the land should be wanted for a street. But if this Were so, of which there is much doubt, it does not settle the question of title. The official map of dedication shows this land to be a part of block 138, and, not long after-the map was filed, Coffin, the·man who dedicated the streets, sold
at
BMITH 'IJ. CITY OF PORTLAND.
737
it j describing in his terms block 138 as the. bloch is shown on this map, thus indicating that pedid not then regard this land as a public street. Loca;ted as it is, there did not seem to be any for a street here. '. . . There was an attempt to show that Coffin had sold lots both before and after the filing of this map, by other maps, upon which College street was .shown as running through this block; and that, therefore, he by recognizing such maps, practically made a dedication prior to the filing of his own map. It is doubtful whethl\lr this evidence is admissible the pleadings. I believe the district judge refused to allow an amendment to the apswer at a late stage of the Case, for the purpose of lettiIlg in such testimony. However this may be, the evidence is unsatisfactory to show a prior dedication. But had he sold other lots by other maps, the parts of those maps where the lots sold are. ICjlclittedmay hare been entire)y correct, and, being so, the maps not being his dedication, a sale ot lots properly laid down by descripFons referring to those maps would be no recognition of the correctness of those maps in other parts where they were erroneous, and to which his attention may not have been attracted. There was no evidence that he sold any lots bounded on College street at this point, or in any of the other gores, through which streets were run on some of the maps gotten up by real-estate agents. Since we have his own map, duly attested and recorded, by which he ml+de his public dedica,tion, the most satisfactory testimony should be required to establish a dedication other and different frOID 'that; .and especially so when it is not as against him that the fact is sought to be established, but as againstsftangers, who have purchased the land by the official map of record, paid a valuable consideration .therefor, and since expended considerable SUms in building, grading, and otherwise impro.ving it. . .. In my judgment, no valid dedication of a public street has been shown to have been made of the land in question, and that it is still private property in the ha.nds of the complainant.. · It is urgedhy defendant that complainant in hisbill.has alleged a legal title in himself, but in trust for"another party; that the cestui que trust is an indispensable party; and the bill must be dismissed for want of parties. If this proposition be not sound,then that the proofs shpw that complainant did not hold it i.n trust, as alleged; because he had before the filing of the bill purchased the interest of the cestui que t1"U8t, so that he was at the commencement of the suit fully vested with both the legal and equitllble title; that his proofs do not make the Case set out in his bill, and it should be dismissed for that reason. As. to the first proposition, the case seems to me to be clearly within the principle laid· down by the supreme court in Carey v. Brown, 92 U. S. 171, wherein it is held that, "where a suit brought by a trustee to recover trust property or to l"educe it to possession. in nowise affects his relations with his cestui que trust, it is unnecessary to make them parties." Now, the relief sought in this case in no way affects the relations of the trustee with his cestui q'lU
trust.
v.30F.no.10-47
As to the second proposition, the bill shows the legal title to be in' complainant; and this, ,withqut more, is sufficient to entitle him to the decree. If there are other relations existing, shown by the bill and testimony, or either, thE!t ",ould not affect his right to the relief' asked., This fact cannot change the aspect of the case. It is at most mere 'matter of surplusage in the bill, and the proof corresponding with it makes it nothing more. lihe is entitled to the relief sought on the legal title, without making the cestui que trust a party, he certainly is when the latter is a party. And it can make no difference who the cestui que trust is, whetheI himself Or some other party. He would be entitled to the relief without the allegations of the trust, whether a trust exists or not; and he would be entitled tb the' same relief with the allegations of the trust, if proved. On either :ljypothesis, he would be entitled to relief. " I think complainant is entitled to the decree prayed, with costs, and it is so ordered. '
MERRILL 'V.
TOBIN.
(Oirouit Court, No D.1owa, O. D. January 24,1887.)
PuBJ.IC LANDS-SWAMP LANDS-'-FITNESS FOR CULlrxvATION.
Lands which, by reason of swamp or overflow, becomeunflt for' cultivation; are within the pu,rv",iew, of th,'e, acto,f congress of 1850, granting certain swamp and overflowed lap,ds to the state of Iowa.
2. LIMITATION OF ACTIONS-ADVE1ul:m POSSESSION-NATURE OF. ' Where the lands in question are, by reason of overflow, unfit for cultivation, and only of use for the purpose of raising grass and hay upon them, tbe use of the lands for that purpose openly, and to the knowledge of the neighborhood, for the statutory period, is sufficient to constitute adverse possession under color of title. 1 " , , 8. ESTOPPEL-EQUITAllLE-PAYMENT Oli' TAXES.
4.
A mere payment of taxes by claimant in ejectment, with knowledge of defendant's claim of title to t,he-Iand, will not estop defendant from asserting his claim of title, because he tacitly permitted complainant to pay the taxes, where defendant, made no concealment of his, title, which was matter of record. To sustain a plea of estoppel, evidence in support of the facts claimed to give'rise to' the estofpel mUlt,be adduced by the party pleading it, for upon him is the burden ,0 proof., '
SAME-PLE.ADIN<r-BuRnEN'QF' PROQF.
InEqUity. BiUtq quiet title. Hubbard, Clark & DawleY, for complainant. T. W. HarrilJon, and John F." Duncombe, for. defendant. '" SHIRAS, J. This case is now before the court upon a, rehearing granted on petition ,of complainarit,2 a.nd the questions inv,olYed have been very
lRespecting the character ofoccnpancy that will'constftute'adverse possession, seli Roots v.Beck, (lnd,) 9N. E. Rep. 698, and note, and v' H\l.dsoiJ, (Mich.) 32 N. W. Rep. 889, and note. 2 No opinion was filed when judgment was rendered on the original hearing.
