Kentucky Seminary v. Wallace , 54 Ky. 35 ( 1854 )

Judge Simpson

delivered the opinion of the Court- — -

[Judge Stites did not sit in this case.]

It does not appear from the bills of exception that any objection was made upon the trial to any of the evidence introduced by the defendant, except to the deed made by John H. Hanna, as chairman of the Kentucky Academy, to Sharp. The propriety of the decision of the court in refusing to exclude this deed, is the only question to be considered, in determining whether the court erred in overruling the plaintiffs’ motion for a new trial. No instructions seem to have been given by the court; and as the evidence, if the deed referred to was sufficient to pass the plaintiffs’ title to the land embraced in it, authorized the verdict, the judgment in favor of the defendant was correct.

The doctrine seems to be well settled, that a variation from the precise name of the corporation, when the true name can be collected from the instrument, or is shown by proper averments, will not invalidate a grant by or to a corporation. (Kent's Com. 92. Pendleton vs. Bank of Kentucky, 1 Mon. 177.) Under this doctiine it has been held, that a devise to the inhabitants of the South Parish, may be enjoyed by the inhabitants of the First Parish. (3 Pick. Rep. 232.) And a grant by John, abbot of N, by the name of William, abbot of N, was held valid. (6 Rep., 65; Angel & Ames on Corporations, 55.) So, if the name of a corporation be expressed by words synonymous, it is sufficient. If J S, abbot of B, make a lease by the name of J S, clerk of B, it is good. (Bacon’s Abridgement, 2 vol. Title Corporations, page 5.)

2. The corporate name in this case was Kentucky Seminary; the deed was made by the name of Kentucky Academy, executed by the President of the Kentucky Seminary, with the seal of the corporation, when there was no such eornoration existing in Kentucky as the Kentucky Academy. Hold, that the deed was properly admitted to go to the jury to show title in the grantee, and that the corporation had power to sell. Seminary and Academy are generally regarded as synonymous. 3. Where the attorney of a party is notified to attend to take depositions, and does attend, and the deposition is not taken, without good reason for the failure, the party failing is subject to .the judgment for mileage, &c., though the client of the attorney, or one of them, resided at the place of taking the deposition.

In this case, the corporate name of the grantor was the Kentucky Seminary. The deed was made in the name of the ' Kentucky Academy. It was executed by the chairman of the board of trustees of the Kentucky Seminary at Frankfort, under the seal of the the corporation. There was no such corporation in existence as the Kentucky Academy at the time the deed was executed. It is obvious, therefore, that this variation in the name of the corporation would not create the impression that the deed had been executed by any other corporation than the one by which it was executed. The words academy and seminary are now generally reg-arded as synonymous. Whether they are so, according to their true and original signification, is not important, if such be their meaning-according to their usual and common acceptation. It is clearly shown that the deed in question was executed by the Kentucky Seminary, and we are of the opinion that the variation which exists in the corporate name, is insufficient to invalidate the conveyance, at least so far as the corporation itself is concerned.

We are also of the opinion that the corporation had authority at the time the deed was executed to sell and convey the land embraced by it. The court, therefore, did not err in refusing to exclude the deed as evidence. Wherefore, the judgment is affirmed.

But during the pendency of the action, a judgment was rendered by the court upon an incidental question, which is complained of in the assignment of errors.

By the agreement of the parties, a notice to take depositions was good against the lessors of the plaintiff, if served upon their attorney, who resided in Hopkinsville. The plaintiffs’ attorney having been notified that a deposition would be taken by the defendant in Frankfort, on a specified day, attended agreeably to the notice, and the defendant having failed to take the deposition, the plaintiff moved for a judgment against him for mileage, according to the provisions of the statute upon the subject. The motion was overruled, upon the ground that as some of the lessors of the plaintiff resided In Frankfort, the attendance of their attorney from Hopkinsville was unnecessary. But as he was the person to be notified, and upon whom the plaintiffs relied to attend to the preparation of their case, and he did attend, under the belief that the deposition would be taken, we think the court erred in overruling the motion, and that the plaintiffs were entitled to a judgment for the amount prescribed by the statute.

Wherefore, the judgment overruling the motion is reversed, and cause remanded that a judgment may be rendered for the plaintiffs. But, as only a very small part of the record relates to the proceedings in this motion, and it is distinct and separate from the balance of the record, the plaintiffs in error will be entitled only to so much of the costs in this court, as would have accrued if the proceedings on the motion had been alone copied in the record, excluding an attorney’s fee.