Eshleman v. Henrietta Vineyard Co.

Paterson, J. The appeals in these three cases all rest upon the same statement of facts. Action 3180 is for the specific performance of a contract to sell certain lands. No. 3593 is for the partition of 14.46 acres of land which embrace the 8.06 acres for which specific [200]performance is sought. Ho. 3653 is an action brought by the corporation and Malter to eject the plaintiff in the first action from the possession of the same 14.46 acres of land. In Eshleman, appellant, v. Henrietta Vineyard Company, respondent, Ho. 18018, this day filed, M. D. Eshleman appealed from that portion of the judgment entered in the court below denying her prayer for specific performance. In Ho. 3180 the defendants, on this appeal, attack a part of the same decree on the ground that there is no evidence to show that the respondent became the owner of an undivided one-half interest in the land, as found by the court below.

In addition to the facts stated in Eshleman v. Henrietta Vineyard Company, No. 18018, the court below found the following: The board of directors of the vineyard company consisted of five persons, of whom Malter was one. The latter was president of the corporation, and owner of all the capital stock except a small amount, which he furnished to four other persons, to enable them to qualify and act as directors. These persons were controlled in their action entirely by the wishes of Malter. By direction of Malter the corporation sold and conveyed the 14.46 acres of land, described in the complaint to Malter and Rogers, the deed being executed to them on or about January 21, 1886. The deed was thereafter kept by Malter among his private effects, and was never recorded. Rogers conveyed to the plaintiff on April 1,1891. As conclusions of law the court found that the plaintiff was not entitled to judgment for specific performance, because estopped by the acceptance of the deed from said corporation of January 21,1886, but that she became by the transfer to her of Rogers’ title a tenant in common with defendant Malter in said 14.46 acres of land, and the owner of an undivided interest therein. The court also found that the vineyard company had no title or interest in said tract of land, but that the defendants should be compelled to perfect title in plaintiff to said undivided half interest, and that said corporation and Malter should be required to exe[201]