Hendee v. Pinkerton

96 Mass. 381 | Mass. | 1867

Foster, J.

1. We entertain no doubt that the Grand Junction Railroad and Depot Company could lawfully sell and convey the lands embraced in this bill. They were not acquired to enable the corporation to carry on the business which it was chartered to do for the benefit of the public, nor needed or used for that purpose. Their alienation in no wise impaired or affected the usefulness of the company as a railroad, or its ability to exercise any of its corporate franchises. In the absence of any express or implied legislative prohibition, this corporation possessed all the ordinary rights of ownership over these lands, and could convey them away absolutely, or mortgage them to secure any valid indebtedness. The recent cases in which railroad mortgages have been adjudged invalid by this court do not countenance any doubt of the power of a railroad company to sell and convey whatever property it may hold, not acquired under the delegated right of eminent domain, or so connected with the franchise to operate and manage a railroad that the alienation would tend to disable the corporation from performing the public duties imposed upon it, in consideration of which its chartered privileges have been conferred.

The special provisions of the acts relative to this company contemplate the acquisition of lands for sale or lease to other railways, and the parcels included in the bill are agreed to have been purchased for such purposes, and not for the use of the corporation in its own railroad business.

2. It may be true that so much of the mortgage as embraced a portion of the railroad track and the franchise belonging thereto is inoperative and void. But the parcels of land conveyed are entirely separate and independent, not in any way connected with this piece of track. The ordinary rule must be applied to this conveyance, by which, if the part that is valid can be separated from that which is void, and carried into effect, it will be done. Amesbury v. Bowditch Ins. Co. 6 Gray, 607.

3. The directors were competent to exercise the power of the corporation to convey or mortgage these lands. This is plain from the terms of the by-law investing them with all the powers of the corporation, not incompatible with the by-laws and the laws of the Commonwealth. The authorities cited on the brief of the plaintiffs support the doctrine that the directors of railway corporations may mortgage property to secure debts which they are authorized to contract, even without any express authority from the corporation to do so. But we have no occasion to resort to any such general power on the part of directors, because here the language defining their powers is so broad and explicit as to leave no room for doubt.

4. The objection to the validity of the seal upon the mortgage remains to be considered. It was a distinct and visible impression of the corporate seal upon and into the substance of the paper on which the conveyance was written. This court has always been and still is disposed to recognize and preserve inflexibly the distinction between sealed and unsealed instruments. In this commonwealth a scroll has never been treated as a seal. And a fac-simile of the seal of a corporation printed with ink on the blank form of an obligation at the same time when the blank was printed and by the same agency, has been recently, on full consideration, decided to be a mere scroll, and not a valid seal. Bates v. Boston & New York Central Railroad, 10 Allen, 251. In that case there was nothing more than a scroll node with types, which differed from the scroll printed on the legal blanks in general use in some of the United States in no other respect than its resemblance to the common seal of the corporation. A printed scroll is no better than one made by pen and ink. And the fact that it was a fac-simile of the device of the corporate seal did not change its character and convert it from a scroll into a seal. No definition of a seal has ever been made, and none can be suggested, liberal enough to include the method adopted in that case, which would not destroy the distinction uniformly adhered to in the usage and judicial decisions of this state. If we should pronounce every scroll a seal, we should speedily be called upon to take the next step of pronouncing every flourish to be a scroll; and nothing would remain of the ancient formality of sealing. Such a course would not only be an unwarrantable judicial innovation upon the common law, but would obliterate the important practical distinction between two classes of instruments of different degrees of solemnity, one of which does and the other does not conclusively import a consideration; one of which remains binding for twenty years, while the other is by statute subject to a limitation of only six years. No case has been found where such a printed device has been regarded as a seal by any court which preserves the distinction between seals and scrawls or scrolls.

On the other hand, such an impression of a seal as the one now before us has never been held insufficient; while similar seals have been decided to be valid in numerous English and American cases, without, as well as with, the aid of statute provisions. In the present instance, we have a durable impression upon a tenacious substance made for the express purpose of solemn authentication. And after our own courts have allowed wafers instead of wax, and paper with gum or mucilage instead of wafers, there seems little reason why we should hesitate also to allow the sufficiency of an impression of a corporate seal on the paper itself. The extent to which this practice has prevailed among corporations,; the fact that the seals of all our own courts have been from an early period of the same description the sanction of numerous decisions in other states and in the federal courts; the convenience and unobjectionable character of the usage, are arguments in its favor too powerful to be resisted, in the absence of any decisive authority to the contrary.

All the light that can be thrown upon the subject by historical and philological research has been afforded to us by the learned and exhaustive briefs which have been furnished by the counsel in this and a former case. But it is unnecessary to incorporate into this opinion the citations and illustrations collected by their commendable diligence^*

To maintain the distinction between sealed and unsealed in struments the line must be drawn somewhere, and we are satisfied to draw it so as to exclude written or printed scrawls, scrolls or devices; but so as to include an actual and permanent impression, upon the substance of the paper, of the common seal of a corporation.

Upon all the questions submitted to us no defect appears to exist in the title of the plaintiffs in equity, and they are entitled to a decree for specific performance by the defendant of his contract to purchase and pay for the lands described in the bill.

* See Mr. Hale’s article in 1 Amer. Law. Rev. 638.