Isham v. Bennington Iron Co., 19 Vt. 230

19 Vt. 230 | Vt. | 1847

Lead Opinion

The opinion of the court was delivered by

Redfield,- J.

This is a case of great magnitude, and, on many accounts, of considerable difficulty; and having been three times argued before this court at great length, and with such uncommon thoroughness and ability, as to leave little ground for expecting much additional aid in that way; and having obtained the opinion of all the members of the court, who can act in the determination of the case, we have deemed it proper not longer to delay the decision. Of the two members of the court now absent, who were present at both the former arguments, the Chief Justice concurs with the decision made below, but in some respects upon different grounds, perhaps, and Judge Bennett with the opinion which is now to be pronounced, as the opinion of the court; and he also concurs, • in the main, with Judge Kellogg and myself in the grounds of the opinion. Judge Davis, who concurs in the result, but not fully in the reasons and grounds by which we arrive at that conclusion, will deliver a separate opinion,

We have stated the results of the three consultations and intervening examinations of this case thus minutely, that the parties may be able to form a just estimate of the propriety of having the case farther discussed, and may perceive that every chance has been afforded the orator, which could reasonably be supposed to be of any avail. And we have all felt sincerely desirous of upholding the deed, if it could be done without too great violence to established principles. We will now state, as briefly as possible, the reasons, which have seemed to us invincible, in the way of such a determination. See Lord Denman’s remarks, at the the close of his opinion in Hilton v. Earl of Granville, 48 E. C. L. 730.

It should be borne in mind, that here is no question in regard to the present validity of this deed, as against the corporation. They make no question of that kind; the bill is taken as confessed against them; and the orator is entitled to his decree, so far as they are concerned. And if it were originally defective as a statute conveyance, it is, at all events, evidence of a contract to convey ; and a court of equity will, in such cases, always decree a conveyance according to the contract. And if there were any defect of authority originally in the persons who professed to act on the part of the corporation, the deed has been so repeatedly recognized, by votes of the corporation, as a good deed, that the corporation would now be held fully to have ratified it; — but this will not give it effect, as a registered deed.

But the great question in this case is, whether this deed was so executed, as to be entitled to registry, under our statute. If not, then clearly the orator cannot expect to prevail. For it has been too often determined to be now brought in question, that the registry of a defective deed is no notice of title to any one. It is not evidence of the facts which it contains, as the original would be. If defective, as a deed, in the formal requisites of its execution, or proof, it is not entitled to registration at all, anymore than any other instrument whatever.

It will next be important to inquire, then, how a deed of land must be executed, to entitle it to registration. Upon this subject, we apprehend, there can be but one opinion. It must be executed according to the statute requisites, by which the registry of deeds , is established. It never has been contended, since the enactment of our statutes requiring deeds of land to be executed with certain specified requisites, that a deed, executed merely according to the common law requirements, was good to convey the land, or that such a deed was entitled to registration. And to establish such a proposition, at any time, would be a virtual repeal of the statute, and would be especially strange, not to say absurd, after more than half a century of uniform acquiescence in regard to the construction of the statute.

It must, then, be admitted upon all hands, that all deeds of land, to be entitled to registration, must conform substantially to the requisites of the statutes; in other words, that the statute mode of conveyance is exclusive of, and did, when it came in force, repeal all others, so far as it provided a new mode of conveyance. If, through design, or inadvertence, its provisions were wholly inapplicable to any class of persons, natural, or artificial, then, doubtless, their rights would not be affected by the statute in any way. They would remain just as they were before. In this state of the case it ¡has been made a serious question in the argument, whether the plaintiff’s deed was sufficient to have entitled it to registration, if •the statute of 1797 were still in force, at the time the deed was executed. This, it seems to us, is taking for granted the main question in the case.

It seems to us, that, if we concede that corporations may convey land under the statute of 1815, and also under that of 1797, it follows, of course, that they may, also, in any of the modes pointed out by the common law, apd that natural persons may, also, — which we have already considered, as to natural- persons. But why artificial persons should any more be authorized to convey in two different modes, than natural persons, is certainly not easy to conjecture, It does not seem to us, that it ever would have occurred to any one, as a mere a priori argument. But when a case occurs, and especially one of such magnitude as the present, an anxiety to save it will suggest modes of argument, which nothing else, almost, will; and especially, when some technical requisite has been omitted through inadvertence, will courts go very far to uphold a conveyance,- — -and more especially, when it has been long acquiesced in. But this relaxation jnust have some limits, and must pot be exercised by a mere arbitrary discretion of the court. If that were so, no one could ever form any opinion what would not be held good.

Is there, then, any rule, by which this deed can be made good. No other, it seems to us, except to make out, that the statute of 1815 still left the statute of 1797 in force as to corporations. This it seems impossible to maintain with any degree of plausibility. The statute of 1797, it is acknowledged on all hands, had no natural adaptation to the case of corporations. It is matter of history, that the profession generally entertained serious doubts, whether a corporation could execute a deed in conformity with the statute of 1797, — whether, in fact, the common law mode of conveyance, as to corporations, was not still in force. This is evidenced by the repeated specific provisions, contained in the charters of corporations before 1815, directing the mode in which they should convey their real estate. This continued to be the very general practice of the legislature until the time of passing the statute of 1815; since that time these special provisions in charters have wholly ceased.

These facts constitute a legislatve declaration, — 1, That the statute of 1797 was defective, as to its application to corporations; 2, That the statute of 1815 was passed to remedy that defect; 3, That subsequently corporations were expected to convey in accordance with the provisions of the latter statute. The case, then, seems to us very much the same, as if this statute of 1815 had been originally a part of the statute of 1797, — as it now is of the Revised Statutes. For all statutes in regard to the same subject matter are to be construed together, as parts of one system. If, then, it had been provided originally, that all deeds should be executed in the manner pointed out in the statute of 1797, but that corporations might convey land by the deed of their president, reciting the vote authorizing the conveyance, when it was found that the general provisions did not apply to corporations, could there be any doubt, that the mode pointed out, in regard to them, was intended to be the exclusive mode, in which such bodies should convey land? None, I apprehend, whatever. But is not the present case, in connection with the acknowledged history of the occasion of passing the statute of 1815, quite as conclusive as the case supposed?

If the provisions of the statute of 1815 had been included in the charter of this corporation, it would, it seems to us, be somewhat difficult to argue, that they might still convey their land, in disregard of the specific provisions of their charter, under the general law of 1797, which had no natural adaptation to the case of conveyances by corporations, and which is, in fact, known to have been adopted with principal reference, and probably exclusive reference, to natural persons. It seems to us such a course of argument will find few advocates bold enough to defend it. But is it not a universal principle, in regard to the law of corporations, that their charters are subject to all the general laws, in force at the time of their creation, as much, precisely, as if those general laws had been specifically repeated in their individual charters'? Was not that confessedly the intention of the legislature, in passing the statute of 18151 The facts already alluded to sufficiently show this.

The expression in the statute of 1S15, “may convey” &c., is, it seems to us, not difficult of explanation. It is more consonant to sound sense and good taste, to use that form of expression, when the legislature is conferring a power, to be exercised at the discretion and for the benefit of the corporation. The form of expression “shall convey,” when they might never have occasion to convey, would be very inappropriate to express the idea intended. But when some duty is required of the corporation, as keeping records, then the appropriate term is “shall keep,” — which we find to be the case in this very statute. How very absurd would an interchange of these forms of expression sound, — The corporation may keep records, but shall convey land.

We cannot, then, as we think, hold, that the statute of 1815 merely superadded another mode of conveyance by corporations, leaving the former mode, whatever it was, still in force, and giving them an election which to adopt, without violating the rules of construction already stated, and, still farther, holding that a subsequent statute, making other and more specific provisions as to the same subject matter, still leaves the former statute in force. We think no case can be found, going this length. It must he admitted, that the case cited from 3 Howard’s Rep. goes great lengths, — no doubt to the very extreme verge of sound construction; but it stops far short of what is here asked for. It is, in fact, rather an authority in favor of the view we adopt, in one particular, when it is held, that the subsequent specific provisions did repeal the former general provisions, in requiring justices of the peace to be commissioned by the court, in order to take the acknowledgment of deeds in the case under consideration.

Whether a new law, by implication, supersedes an old one upon the same subject cannot well be determined, in most cases, by any merely a priori rules of argument, or construction, but must depend very much upon the peculiar circumstances of each case, — the old and the new law, — the mischief and the remedy. If I were to illustrate the subject by a homely comparison, I could, perhaps, adopt none more in point, than that of the discontinuance of an old road by laying out a new one, merely, without any other act. If the new road wholly superseded any necessity whatever for the old one, then the old one would be discontinued by implication, — otherwise not.

The statute of 1815 seems to have been intended to put deeds executed by corporations upon the same footing with other deeds, executed by virtue of a power, — that is, that the power itself should appear upon the record. Hence the vote authorizing the president to convey land must be recited in the deed. We do not consider, that the corporation must always convey their land by an officer called a president. It does not seem very important, what the name of the officer, or agent, is, or whether he have any name ; but the essence of the requisition is, that the deed must be executed in pursuance of some vote of the corporation, and that this vote must be recited in the deed. And this, we think, after the passing of the statute of 1815, was intended to be the uniform and the only mode of conveying land by corporations.

I know of no rule of construction of statutes of more universal application, than that later and more specific statutes do, as a general rule, supersede former and more general statutes, so far as the new and more specific provisions go. I think, too, that the case of Wheelock v. Moulton, 15 Vt. 519, has fully decided this very case, and upon this very ground. For although there were two grounds urged in that case, and both, to my mind, free from doubt, yet the court were agreed only upon the first ground, — that a deed signed by all the corporators, and professing to convey the land of the corporation, was not binding upon the corporation, unless executed. in pursuance of some vote of the corporation, and in conformity with the statute of 1815. I thought, to be sure, that that deed did not describe any land of the corporation; but upon that point the court were not agreed, and the case was decided, and was intended to be put, mainly upon the other ground. It is certainly a new mode of getting rid of the authority of a decision, that because it is put upon two grounds, it is authority upon neither.

But under the statute of 1797 we have to adopt a very liberal construction, in order to bring this case within its provisions. It is almost as difficult to save this case here, as upon the other ground, it seems to me.

1. In regard to there being any proper evidence of the consent of the corporators to the deed, before its execution. And if the deed was not executed by the consent of the corporators, at the time of its registration, then no after confirmation by the corporation will give it validity, as a registered deed. And if not a valid registered deed, then it will not take precedence of the defendants’ attachments, unless upon proof of notice to them of the existence of the deed, after its confirmation by the corporation, — which is not attempted.

Upon the point of the consent of the corporation to the execution of this deed, I readily admit, that we are not to require unreasonable or unusual proof. If a corporation keep no records, and are bylaw required to keep none, then we must be satisfied by’oral proof of the consent of the members; — and such is the rule at common law, and in many of the states. But in a case like the present, where the corporation keep continuous records of all their doings, as much as a .town, or city, or other municipal corporation, and where these and all similar corporations áre by express statute required to keep such “record of all their doings,” which shall be open to the inspection of all persons interested therein, is it unreasonable to require, that some consent to the conveyance shall be shown by such records, or at least by some vote of the corporation, when the members were regularly assembled for that purpose ? Unless we do require this, we disregard the statute of 1815 in another important particular, and go back to the common law, or the law of New York, instead of the law of Vermont.

I do not insist, that there must have been a vote authorizing this conveyance in express terms. But certainly there must have been this, or the appointment of such a board of directors, as would, by fair implication, possess this power. Nothing of this kind appeal's, —certainly, unless it is to be inferred from the fact of all the corporators being present at the time of the execution of this deed. But all except Hammond were present for the purpose merely of conveying their stock. They did not meet for the purpose of acting in regard to any corporate business, nor does it appear that, they were at all consulted in regard to it. But they now say they consented to the execution of the deed, — that is, I suppose they made no express resistance and now think they were willing at that time. This is just that convenient degree of uncertainty, that will permit one to incline the evidence of consent according to his present wishes, or prepossessions. If these corporators now felt an interest in defeating this mortgage, can it be doubted, that they might, with perfect and strict regard to truth, testify that no vote, or consent, of the corporation was ever given to this deed, and that a majority of the corporators did not dissent, because they were not consulted, —and thus leave it, where it is, the mere act of the chairman?

It is not probable to my mind, that those, who advised the manner of executing this deed, supposed it was necessary to have the consent of any one, except Hammond, so far as the execution of the deed by the corporation was concerned, or that they had any suspicion, that the law governing the corporation required records of all their doings to be kept. This part of the statute is express; it is shall, and not may ; and why was this provision of the law also disregarded? For the same reason, doubtless, that the whole business of this corporation has been conducted in reference to the law of another state. It is not a little remarkable, that the New York conveyancers, who drew this deed, should not have thought of the propriety of conforming to the laws of the state where the corporation was created, and where it existed, if any where, and where the land was situated.

Many of the views above expressed are certainly confirmed by the reasoning of the court in Bank of United States v. Dandridge, 12 Wheat. 64, 6 Pet. Cond. R. 440.

2. But if we could get over this point, it is still obvious, that this deed is not signed, within any fair and reasonable construction o,f the statute of 1797. The statute requires a deed of land to be signed, for the very same reason that certain contracts are required by the statute of frauds to be signed, — that they may not be exposed to the uncertainty of oral proof. No one doubts, that such was the intention of our legislature, in requiring conveyances of land to be signed by the grantor. And I do not understand, that it is contended, that signing, in the case of a conveyance by natural persons, can be dispensed with. And I confess I do not well comprehend the force of the argument, which dispenses with signing by corporations. This is done in England, I admit, and in New York, in many cases.

This is urged, first, upon the ground of necessity. But there can be nothing in this. A corporation may sign a deed, as well as seal it. Both must be done by some agent. And so may natural persons do both these acts by the hand of some one, in their presence. But still there is a necessity that the name of the grantor should be subscribed, to designate it as his deed.

But it is farther said, that sealing, in the case of a corporation, is equivalent to signing and sealing by a natural person. But this is not true. The seal does not designate the corporation, any more than the seal of a natural person. If it were so, there might be some soundness in the argument. But being otherwise, I do not see why the name of the corporation should not be subscribed to the deed of land, as much as that of a natural person, and for the same reason. Upon any other construction, it seems to me, we make the conveyance to rest in parol, and that we might just as well dispense with signing in all cases.

3. I shall spend no time upon the acknowledgment. It is not attempted to be sustained upon the ground, that, being executed in New York, it may be proved according to their laws. Such a construction of our statute of conveyances has never obtained. Proof of a deed by a witness can only be resorted to in another state, when such a case occurs, as admits of proof in this state, as where the grantor refuses to acknowledge, is dead, or has removed, Sfc.

But this acknowlegment is much like the rest of the deed. It is •no acknowledgment, no pretence of any such thing; it is proof, and nothing else, — treating Hammond as a subscribing witness to the deed. But, inasmuch as, if he could seal the deed, he could also acknowledge it, we are asked to treat his testimony as an acknowledgment. That is undoubtely making it something, which it was never intended to be. But, as the one who attempted to prove it was the one to acknowledge it, if .any one had any such authority, — which is not shown, — if we could get along with the rest of the case, I think we could with this part of it.

The case of Burrell v. Nahant Bank, 2 Met. 163, is no authority for this case. The only question there was, whether the mortgage was good against the bank; and the court held it good, on the ground of ratification. The case of Gordon v. Preston, 1 Watts 385, comes very near in point, but differs in one essential particular from the present case. That deed seems to have been in proper form, and the only objection was a defect of authority in those who executed it, — which defect, it was held, was cured by subsequent ratification. Perhaps, if this deed had been a full compliance with the requisites of the statute, we should not have held it void for any irregularity in the original power to execute it, after long acquiescence. The King v. Theodorick, 8 East 543, only shows, that all the corporators, being present, may transact any business, being competent for them to do. But this must be understood, when no statute of the corporation forbids such action in such manner, I have no doubt, that the members, being all present, might have conferred the authority; — and so might they in the case of Wheelock v. Moulton, 15 Vt. 519. But it was expressly held in that case, that all the corporators signing the deed-did not amount to the action of the corporation. There must-be some action as a corporation,— some consent given with intent to hind the corporation.

Beckwith v. Windsor Manufacturing Co., 14 Conn. 594, was a case against the corporation merely, and the deed was executed in pursuance of a vote of the corporation. The only question in that case was, whether the vote must be under seal, or recorded in the town clerk’s office. Derby Canal Co. v. Wilmot, 9 East 360, seems to recognize the principle, that affixing the seal of a corporation is sufficient to pass the title to land, if it be done with that intent. But there is no pretence, that the common law of conveyance is in force here. The cases from New York show, most undoubtedly, that such is the rule there. 6 Paige 56. 3 Johns. 226. But these decisions cannot affect the present question. This deed is no doubt good enough in New York, and was executed with reference to their laws. From the case of The Proprietors of the Mill Dam Foundry v. Hovey, 21 Pick. 417, it is evident the practice in Massachusetts is, that deeds of land by corporations are to be signed by some agent authorized to do so, as well as sealed.

The result is, that the decree of the chancellor must be reversed, and the case be remanded to the court of chancery, with a mandate to dismiss the bill', with costs, as to all the defendants except the corporation, and to allow the orator to take such a decree as he may be advised against the corporation, consistent with the scope of his bill.

The decree of the chancellor, dismissing the cross bill, is affirmed, with additional costs.

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Concurrence Opinion

Davis, J.

While I concur in the result just announced by the presiding judge, I find myself compelled to dissent from several of the positions assumed in the opinion delivered; and as they embrace points of much practical importance, which may hereafter come under discussion, I feel unwilling to let the occasion pass without some remarks in reference to them. The strong and acknowledged equity of the orator’s claim, I confess, inclined my mind to yield assent to the arguments and authorities adduced to obviate mere ■technical objections to this mortgage. Notwithstanding this natural bias, and notwithstanding there are respectable authorities which go the full length of sustaining it, still, after such consideration as I have been able to give the subject, I am constrained to admit, that, on some material points, the weight of reason and authority seems to be adverse to the validity of the orator’s claim.

Besides, this case has been, I am informed, three times argued before this court, and first and last, at least, before all the judges competent to sit in it. On the present occasion much labor and research have been bestowed upon it by the counsel on both sides. Having reference to the known and supposed opinions of the other members of the court, I am satisfied, that, were my doubts of the propriety of the general result more tenacious than they really are, it would be my duty, as the junior member of the court, to surrender them, rather than be the means of protracting an expensive controversy, with no prospect of farther elucidation, and with little or no reason to anticipate in the end a different result,

That this mortgage must fall before the statute of November 3, 1815, if that statute is to be regarded as the sole source of authority in the corporation to convey their lands by mortgage, I have no doubt; for the deed does not purport to have been executed by any one as president of the corporation, nor does it contain any recital of a vote empowering Mr. Hammond, or either of the other two persons, whose names and seals are affixed to the instrument, as president, director, or in any capacity, to execute the same.

This instrument is in the form of an indenture between three parties, the Bennington Iron Company, — Charles II. Hammond, Nathan Leavenworth and Duncan P. Campbell, — and Francis Depeau, the orator’s intestate. It purports to have been signed and sealed by Hammond, as chairman of the company, and by Hammond, Leavenworth and Campbell, as individuals, but is not signed by Depeau, who is, in the body of the instrument, styled the party of the third part. It recites the act of incorporation, the fact that the three individuals above named were the sole owners of the capital stock, and that the corporation and the stockholders were jointly indebted to the orator’s intestate in $20,000, for which they had given their joint bond, conditioned for the payment of the same by a time specified, and then proceeds to convey by mortgage, to secure the payment of said sum of money, certain lands in Bennington, belonging to the corporation, and also the shares in the capital stock owned by the above stock holders.

By reference to the act of incorporation it appears that a president is not particularly provided for; and it does not appear, that such an officer was in existence at the date of the mortgage. There was not and could not therefore be a compliance with the requirements of section three of the statute of 1815. A vote authorizing the chairman, if indeed it is not absurd to suppose the continued existence of an officer by that name, to make a conveyance would be no compliance with the law. The deed, however, recites no' such vote; and it is not pretended, that, in point of fact, any such vote was ever passed. Were it otherwise, the declaration on oath of Mr. Hammond, that the seal affixed "to his name was the corporate seal, and was so affixed by him by and under the authority of the corporation, whether made in the form of an acknowledgment before the commissoner in New York, or otherwise, cannot be received as a substitute for the antecedent corporate vote, and the recital thereof on the face of the deed, as required by the statute. Even if this kind ,of evidence were admissible, it falls short of the statute requirement, inasmuch as the authority claimed has reference only to the affixing of the seal, and has none whatever to the signature. Signing by the principal, or by a properly constituted agent, is at least as essential as sealing; and no valid conveyance by deed could be made without one, as well as the other.

These considerations are abundantly sufficient to satisfy me, that, under the statute of 1815, this mortgage cannot be supported. Had the whole question rested here, I should not have felt called upon to make any remarks. I cannot accede to the position, that this statute must be so construed, as to exclude every other mode of alienation by a corporation previously in.existence.

There is nothing in its language importing any such exclusion. It is the first general statute, indeed, specially providing for conveyances of real estate by corporations ; yet it is not seriously pretended, that, prior to 1815, turnpike, manufacturing, and other corporations, most of which were, in their several charters, authorized to purchase and convey real estate, could not, under the law then in force, make a valid conveyance by mortgage, or otherwise.

The general statute of 1797, prescribing certain formalities to be observed in the conveyance of real estate, though it does not name corporations, and though its language, in some respects, seems not precisely adapted to these artificial persons, has nevertheless been always understood to authorize conveyances by them. They can, indeed, neither sign, nor seal, a deed, nor acknowledge it before a magistrate, as required, without the intervention of an agent; but by such agent they can do all of these acts. Under that statute this corporation could have executed a valid mortgage of their lands to Depeau, unless it is to be regarded as superseded by the statute of 1815. Whether this conveyance is, in fact, in conformity to the former statute, I shall consider presently.

It is unquestionably true, that a subsequent statute may often be construed as abrogating an antecedent one, without special words of repeal, or extension. Many cases of this kind are to be found in our statute book. If it can be fairly presumed, from the generality of the language used, the nature and completeness of the new provisions adopted, or the incompatibility of the old and new enactments, that it was the intention of the legislature to substitute a new and entire system in lieu of and exclusive of the old one, the substituted provisions should then be construed in the same manner, as if in terms made exclusive.

Tried by these tests, I cannot concur in the opinion that no conveyance by a corporation can avail, unless made in conformity to the statute of 1815. The scope and object of the statute, as well as its title and language, clearly indicate, that it was not the purpose of the legislature to introduce any new and exclusive mode of conveyance, applicable to all corporations, or even to turnpike and manufacturing corporations. It begins by declaring the shares in those of the last named description to be personal property, and proceeds to designate the manner, in which they may be attached on mesne process, and sold on execution, as such. It points out the mode of proceeding, when no clerk exists, in case of non-payment of any tax, or assessment, authorizes the first named to hold land for the accommodation of toll-gatherers, imposes a penalty for taking excessive toll, or unreasonably delaying travellers, for defacing sign boards, injuring the road, &c., and concludes by requiring said corporations to keep records of their doings, designate the shares by numbers and the proprietors of each by name. Throughout, no allusion is made to any other description of corporation, except in the third section, designating the mode of conveying real estate, in which the words “turnpike, manufacturing, or other private corporation,” are introduced. An additional statute, passed in 1817, provides a penalty for the neglect to appoint a clerk, and for refusal to exhibit by-laws and records; these additional provisions are confined entirely to the two kinds of corporation above named.

Many religious, eleemosynary, literary and other corporations had been created in this state before 1815, empowered to hold and convey lands; and many others have been created since. I apprehend it is contrary to reason and all sound principles of construction, to infer an intention to abrogate modes of conveyance theretofore recognized as valid in respect to these, from a loose general expression like the above, having no reference whatever to such corporations, but merely to certain specified corporations.

I am of opinion, from these considerations, that all such bodies may still alienate their real estate in the same way and with the same formalities they could have done previously to 1815, unless, indeed, the clause in the recent Revised Statutes shall be construed as more comprehensive than the former statute. True, the Bennington Iron Company was a manufacturing corporation, and as such came within the scope of the statute of that year. But my object is not to prove that the mode indicated in the third section is not applicable to this case; it is only to shew, that it is not the ex- • elusive one. It is a question of construction merely, and, as such, the fact, that in all other cases the legislature have left the law as it was, affords strong presumption against the exclusive character of the special enactment adverted to.

This point was not under consideration in the case of Warner v. Mower et al., 11 Vt. 385. In the case of Wheelock v. Moulton et al., 15 Vt. 519, it is indeed said, that, “ by the law of this state corporations can only convey their lands and real estate by the deed of their president, reciting the vote of the corporation, authorizing the conveyance.” The case, however, required no opinion of this kind. The important point decided by the court was, that a mortgage of all the shares in a corporation, by two individuals, being the sole owners thereof, could not operate as a mortgage of the real estate of the corporation, notwithstanding the shares were, in the mortgage deed, described to be land. Nothing can be clearer, than the distinction between the lands of such a body, owned by the as■sociation collectively, as real estate, and the shares in its capital stock, owned severally, by the individual members, which the statute of 1815 declares shall be considered, what in fact they were usually considered, independent of the statute, personal property. That the conclusion to which the court came, adverse to the claim asserted by the mortgagee, that such a conveyance operated as a mortgage of the lands of the company, was correct, it is difficult to doubt. Indeed, in the language of the learned judge who delivered the opinion in that case, it is past my comprehension, how it could ever have been suspected, that such a deed was intended to carry with it the real estate. This is all, that the case required to be decided. Whatever observations, therefore, fell from the judge in respect to the authority of the owners of all the shares to convey the corporate lands, or the manner in which the corporation could have conveyed them, whether by a corporate vote, recited in the deed, or without any such vote, whether under the corporate seal, or the seal of the president, was but the individual opinion of the judge, and is not regarded as authoritative. I do not, therefore, understand, that it has ever been judicially determined by this court, that corporations can convey their real estate in no other way, than that pointed out by the statute of 1815 ; and in these remarks my object has been to prevent my own concurrence in the judgment in the present case from being regarded as influenced at all by the reasoning on this point in the main opinion.

The important question with me has been, whether this mortgage could be sustained under the statute of 1797. That statute, which, as already said, is general in its terms, makes signing and sealing by the grantor essential to the validity of a deed. If done by an attorney, agent, or other person, in pursuance of competent authority from the principal, it is the same as if done by the latter. The corporation seal was affixed, as it is to be presumed, by competent authority; but the deed is not signed by it; the only signature purporting to be for the company is that of C. F. Hammond, chairman. There is no difficulty in complying with the statute in this respect. No doubt an agent must be constituted, either by deed, as before 1815, or by vote simply, under that statute. When so constituted, he can sign the corporate name, — as, “ The Bennington Iron Company, by C. F. Hammond,” or “ C. F. Hammond, for The Bennington Iron Company.” Either of these modes would answer. The deed must be that of the principal, and sealed with his seal. Hulle v. Heightman, 2 East 145. In the present case the corporate name is not affixed to the instrument by Hammond, or any other person. Signing as “ Chairman ” does not obviate the difficulty; for it is but descriptio persona. Nothing on the face of the deed goes to show, that the corporation had, in any manner, constituted Haim mond their agent, or attorney, with power to execute the mortgage; he does not directly profess to execute it in their behalf. He seems to have assumed that his possition as chairman dispensed with all this, and rendered his signature as such equivalent to affixing the corporate name. This was a fatal error, and neither the affixing the corporation seal, nor the statement, under oath, in the subsequent acknowledgment, can be regarded as supplying the deficiency.

Although there are authorities to the effect,, that simply affixing a seal is tantamount to both signing and sealing, especially in respect to corporations, which were said to speak and could only speak by their common seal, the doctrine is antiquated and obsolete; and, if I am right in supposing that a corporation can at all make a deed of conveyance under the statute of 1797, every sound principle of construction forbids the idea, that, when both signing and sealing are expressly required, and both are equally practicable, one is to be understood as comprehending the other.

A similar objection lies against the acknowledgment, required in this case to uphold this mortgage against the antagonist claims of creditors. It is not acknowledged by any one assuming to act in behalf of the corporation, as the deed of the corporation, which it is, if anything. Whatever efficacy it may have as a conveyance of the shares, it can have none as a mortgage of the lands of the company.

On these grounds, mainly, I concur in denying to the orator a right to foreclose, as against those defendants, who have claims upon the mortgaged lands as attaching creditors. I am satisfied, also, that the deed, on the face of it, should carry some general statement of the nature of the authority and the character, or capacity, in which the agent assumes to make the conveyance. This may be by vote, by power of attorney, or other deed, empowering the agent to act in the matter. This deed purports, indeed, to be tripartite, one party being the corporation; but there is no statement of any fact, or circumstance, indicating, prima facie, that Hammond, or either of the other persons, whose names are affixed, was vested with authority to bind the corporation. The addition of “ chairman” imports no such authority, anymore than would the word director, clerk, stock-holder, member, or any other; for non constat, that such addition has anything to do with the right to sign and seal a deed for the company. Our registry system required, that, when a conveyance should be made by attorney, under a power, this latter instrument, as well as the conveyance, should be recorded. No inference on this point can be drawn from the fact stated, that all the stock-holders signed the deed. This was necessary, in order to convey their individual shares. Neither collectively nor separately do they profess to be clothed with the power to execute a deed for the corporate body.

Such acts of ratification subsequently, as are relied upon by the orator, whatever avail they may be of as between him and the corporation, — and no defence is here set up by the latter, — cannot be interposed, to turn aside the rights of the other defendants, even though they took place previous to the attachments, and though they were apparent on the corporate records.

In conclusion, I will remark, that, in considering the case in reference to the statute of 1815,1 am unwilling to give so stringent a construction to the language of the third section, as has been given by the presiding judge. That the- deed of the president, literally, under his own seal, reciting the vote, &c., will satisfy the terms of the statute, I am not disposed to question. A close adherence to the letter will, perhaps, justify such a conclusion. But I am far from thinking, that a deed of the corporation, under their seal, signed by the president, as such, for the corporation, and reciting the vote, would not equally carry out the intention of the legislature. Such would, in a sense, be as much the deed of the president, and a conveyance by him, as the other ; inasmuch as his concurrence, in his official character, is required, to give validity to it. This view of the subject may be thought to receive some countenance from th,e phraseology employed in the late revision, which seems to have intended to extend the provision to all corporations, public, or private, and yet uses language, without apparent intention to depart from the previous provision, which clearly supposes the deed to be that of the corporation, through the intervention of the agent, authorized by vote, whether he be president, or some other person, either in or out of the corporation.