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ing been irregular and void, upon very many grounds, the principal of which are that the resolution was not passed by a vote of four-fifths of all the capital stock of the Breen Mining Company, as required by law; that, at the time the deeds were made and executed by Mrs. Sawyer to the Breen Iron Company, the grantee therein had not been organized, and therefore had no legal existence. Other equally or more serious questions are raised.
Complainants in this case are undertaking to establish their absolute ownership to a one-fifth interest in and to all of the property and assets of the Breen Mining Company. For the purpose of determining that question, it is not necessary to pass upon the regularity of the sale by other stockholders of their interest in the Breen Mining Company property to defendant Breen Iron Company.
The record shows that neither complainants nor any person lawfully representing them or their stock were present and voting at the meeting of January 3, 1902, or ratified its action. Sole reliance is placed by defendant upon the claimed ratification of Huff and Henderson. We have already determined that the acts of these men in that regard were illegal and void. Further, all the persons who were stockholders and officers of the Breen Mining Company at the time of this sale are charged with knowledge that the one-fifth interest claimed by complainants took no part in such sale, and these same persons, who later, upon the organization of the Breen Iron Company, became its sole officers and managers, being owners of a majority of its stock, had knowledge, as such officers of the new corporation, of all the facts relative to the sale of the Breen Mining Company, which led up to the organization of defendant Breen Iron Company, and such knowledge became and was the knowledge of the Breen Iron Company. It follows that the Breen
Iron Company, without consideration, took possession and control of the one-fifth interest of all of the property and assets of the Breen Mining Company which was the property of complainants, and which this defendant admits that it continues to hold and control.
It is further contended on behalf of this defendant that complainants are estopped, by acquiescence and laches, from asserting ownership of this property. One of complainants was a minor at the time the bill of complaint in this cause was filed. The inference from the record is that the other children were minors during most, if not all, of the period which elapsed between the death of Salmon P. Saxton and the date when the mother discovered the real relation of Huff and Henderson to the estate of her father, which was but a short time before this suit was instituted. There is positive testimony in the record that during all these transactions, which led up to the claimed sale of complainants' property, the mother had no knowledge whatever of the true condition of her father's estate. She several times asked Huff and Henderson about her affairs, and the only information she received was that they would attend to or look after that. There is no evidence in the record of any knowledge on her part of what was being done or attempted to be done with her father's estate, except that these two men claimed to be executors. She needed means to provide for herself and children, and wrote a few letters in which she expressed a desire to realize upon this stock, which represented a one-fifth interest in the Breen Mining Company. She did not know where this stock was and was not told, and we have not found in the record who had it or what became of it, although it appears by the record that the books of the Breen Mining Company showed that it stood in the name of the Saxton estate. After Huff's death, which occurred in 1906, Mrs. Marsh, who was a relative of his, in 1907 went to his home, and his widow gave her two certificates of this stock of 500 shares each, which she said were found among the papers of her deceased husband. These certificates were produced by complainant Mrs. Marsh upon the hearing of this cause, and she still has them. If the record discloses where the other certificates are, it has not been called to our attention.
It is further insisted by defendant that this complainant, shortly before the bill in this case was filed, settled with Henderson as executor. To relate the circumstances upon which this claim is based would occupy too much space in this opinion. A careful examination of what the record discloses satisfies us that it does not support the contention of defendant, but that it was the result of the settlement of a suit which she had brought against Henderson personally to recover the rent of a farm, part of her estate under the will, which he had wrongfully appropriated.
The record discloses that, after Mrs. Marsh had begun an investigation in relation to the property to which she was entitled under her father's will, she asked the probate judge to bring Henderson, the survivor of the two men named as executors in said will, into court to disclose what had been done with the estate, and, by reason of the refusal of the probate judge to comply with her request, it became necessary for her to apply to the circuit court for an order against him to show cause why he should not act as requested, which order the circuit court granted April 3, 1909. After demand had been made upon Henderson to turn over the money for farm rent, he wrote March 29, 1909, protesting that he did not claim to be an executor; that no letters testamentary were ever issued. Early in July the case against him was settled and discontinued and a receipt given to him. Three days later, July 12, 1909, an order was entered in probate court in the usual form discharging Henderson as executor, after a reecipt in full had been filed. The probate records in evidence in this case show that the statements contained in the order of discharge contradict the same and show that they are false. The record in this case shows conclusively that Mrs. Marsh never settled with Henderson any matter except the trover case for rent of the farm, and also that complainants have never ratified any of the acts of Huff and Henderson, or either of them, relative to the sale of their interest in the Breen Mining Company.
Under this contention of estoppel and laches, it is urged that complainant, Mrs. Marsh, has stood by while third parties, relying upon the action of Huff and Henderson, acquired an interest in the Breen Iron Company. This refers, we presume, to the majority interest acquired therein by the Van Dykes and their associates. Both Mr. Van Dyke, Sr., and his son were prominent attorneys of Milwaukee, Wis., well acquainted with mining interests and at times actively engaged in the same. They were acquainted with this property, then held by the Breen Iron Company, examined the records of the title to the same, and made the purchase. They knew that Huff and Henderson were named as executors of the estate of Salmon P. Saxton, and in defendants' brief it is claimed reliance was placed upon their actions. They knew also as to the outstanding tax titles and in making the purchase of the interest for which they gave $15,500, and of which they reserved $500 for the purpose of compelling the Breen Iron Company to clear them up. The examination which they made must have disclosed the status of Huff and Henderson, in relation to the Saxton estate, and they must be considered to have purchased with full knowledge of what the records disclosed, both as to the matter of taxes, of which they had a complete record, and as to the title to the property of the Breen Mining Company from the records thereof. As to this interest the record does not disclose any equitable estoppel as against complainants, or any of them.
Defendant Breen Iron Company also contends that it acquired tax titles for taxes for the years 1897 and 1899 upon this property, and that more than five years have elapsed since acquiring such titles. This defendant had in fact gone into possession, early in 1902, of all of the premises and property of the Breen Mining Company under a claimed transfer from Mrs. Sawyer, and had continued in possession thereof under such transfer until 1904, when it received from the same grantor two other deeds of like import as the first two, presumably for the reason that the first deeds to it were made before it was a corporate entity. As we have stated, it acquired this property with notice and knowledge of the rights of complainants, of the state of the title, and the manner in which the transfer from the Breen Mining Company to Mrs. Sawyer had been brought about. Under these circumstances, it cannot be considered that it acquired possession of these premises under the tax titles relied upon. This defendant, in acquiring this property, assumed the place and the duties of the original owner, as far as these complainants are concerned, and was equitably bound to pay the delinquent taxes represented by these tax titles, and, by the conveyances of these titles to it, it acquired nothing to strengthen its title as against the interest of these complainants. These taxes became delinquent when it was the duty of officers of defendant, who were then the officers of the Breen Mining Company, to pay out of funds, which at that time or later, before the sales had ripened into title, were in their hands.
By the resolution under which this defendant claims that complainants' title was conveyed to it, and to which all of the incorporators of defendant were parties, it appears that the consideration of the trans