22 Vt. 274 | Vt. | 1850
The opinion of the court was delivered by
It is first to be determined, whether the mortgage deed, in this case, was so executed, as to convey the title of the corporation. Every member of th.e corporation is shown to have had the requisite notice of the meeting, at which it was voted to deed, unless the Allens and Blakely, who had had a small number of shares conveyed to them, by way of security for signing notes for the company, and who had pot attended the meetings of the company, or not generally, are to be regarded as entitled to notice. And we think, the pledgee of stock is not, for the purpose of notice of meetings, to be regarded as the owner of the stock. This is no doubt the general understanding and .expectation in such cases, and has been decided so, whenever the .question has arisen, as far as we know. Angell & Ames, 98, 99. Merchants' Bank v. Cook, 4 Pick. 405. See, also, Barker ex parte, ex relatione Mer. Ins. Co., 6 Wend. 509. Ex parte Wilcocks, 7 Cow. 402.
There is no objection to the form of the notice, or to the time, or other circumstances attending the call of the meeting, except the place. In regard to this, it must be borne in mind, that every reasonable presumption is to be made in favor of the regularity of the proceedings of such a corporation, as is doqe in regard to judicial and other proceedings, coming up for revision in courts of justice. It is always incumbent upon the party, attempting to impugn them, to adduce positive proof. The requisite notice, in the case of proceedings in the probate court, where none appeared of record, was presumed, in Corliss v. Corliss, 8 Vt. 373; and perhaps the same rule should apply to the proceedings of private corporations. But clearly, in regard to the place of holding a meeting, which the statutes required to be held at the counting room of the corporation, and which appeared to have been held at the dwelling house of the general agent and clerk, without stating, that it was at the counting room of the corporation, it would, we think, in the absence of all
As to the form of the deed, we think it is sufficient. It purports to be the deed of the company, by William Wallace their agent, in the grant, and in the covenants. And even the first execution, “ William Wallace, agent for the Flower Brook Manufacturing Co.,” in connection with what goes before, roust be understood to be an execution in the name of the company. This form is considered sufficient in the leading case of Wilkes v. Back, 2 East 142, and in the Vermont cases, cited in argument. And I think no well considered case has held the contrary, But all the cases undoubtedly hold, that a deed, executed under a power, is always required to be executed in the name of the principal. This is indispensable to its validity.
In the case of Isham, Adm’r, v. Bennington Iron Co., 19 Vt. 230, the manner of execution, in this particular, was very different from the present. In that case the name of the company was not in any manner subscribed to the deed, except in the description of the person of Hammond, but the signature of Hammond was merely an official signature, the affix being as clearly a mere descriptio persones, as it is possible to conceive. And in that case there was no pretence of any meeting or vote of the corporation whatever, but sole reliance was made upon the efficacy of affixing the seal of the cor*, poration merely, — which was sufficient in New York, where the deed was made, but not sufficient in this state, where the land lay.
I should have very little doubt, if it were necessary to resort to the second execution of this deed, for the purpose of sustaining it, that the vote might, with propriety, be so construed, as to confer upon William Wallace a personal power, to be executed on behalf of the corporation, which would not be revoked by the appointment of another agent for the general purposes of the company. And especially should I esteem it reasonable, to give this construction to the power delegated to him; if it were necessary to uphold the deed, in favor of a bona fide mortgagee, after he had attempted to execute the power and the second execution was a confirmation merely. But we do not esteem this necessary.
In regard to the necessity of the deed reciting the vote of the corporation, we can only say, that as the statute, in force at the time of the execution of this deed, did not require that formality, we should certainly not be prepared to require it, as essential to the validity of the deed. It is no doubt true, that such is the general practice, in regard to deeds executed under a power ; but we do not esteem it essential to their validity, upon general principles. And while these private corporations are required to keep records of their proceedings, and are only authorized to convey land, by the vote of the corporation, through an agent appointed for that purpose, a deed executed in the manner this was, without reciting the vote of the corporation, will sufficiently indicate, where the power is to be looked for.
This, then, disposes of all the objections to the deed, as to its original execution, and validity, in favor of Delano. And whether the plaintiff can claim to set it up against the company depends upon the source of his title. If John M. Clark, upon paying the mortgage, could claim to keep it on foot against the company, so as to give him a priority against subsequent attaching creditors, then could his surety, Fitch Clark, and Ids assignee, the plaintiff.
As John M. Clark was originally a mere surety for the corporation upon this mortgage note, he could, no doubt, upon paying the note, claim to be subrogated to the rights of Delano. This has been repeatedly held in this state, — Payne v. Hathaway, 3 Vt. 212, —and is a familiar doctrine of the English chancery, derived from the civil law. The right of John M. Clark to keep this mortgage on foot will, no doubt, depend, then, essentially, upon the effect of the contract, by which he undertook to pay the debts of the corporation, and this among them. If this made the debt essentially his own debt, as between himself and the corporation, so that he, became principal and they but sureties, then upon paying it, either by him
But we are not prepared to say, that the contract of the eighth of February, 1843, can or ought to be so construed, as to have such effect. It seems, in terms, and in fact, to be nothing more than an arrangement among the sureties, by which John M. Clark, in consideration of the assignment of certain stock from the other sureties, undertook to save them harmless from all their liabilities on behalf of the corporation. After this, upon payment of the note, he clearly could not set it up against them, or their property, had that been mortgaged 'for the payment; nor could his surety, or the assignee of such surety. But as to the corporation he was still but a surety. He had received no consideration from them to pay this debt, nor had he bound himself to pay it for them. If he had suffered the real estate to go upon the mortgage to Delano, the company could not complain; and having paid it, he may now keep it on foot, and so may his surety, or the plaintiff, who stands in his place. It is clear, then, that the plaintiff may recover against the corporation. And if against the corporation, then equally against subsequent attaching creditors, or subsequent purchasers, with notice. This is the only advantage, which a surety can ever realize by being subrogated to the rights of the creditor, upon payment of the debt of the principal. And we do not see, how the defendants Coggill can claim to stand in any better light than that of subsequent attaching creditors, with the means of obtaining notice of all the facts in the case, — which is equivalent to notice. And that they might have believed Clark to be the real debtor will not justify them in so treating him, unless that were the fact, or unless he have done something to induce such a belief. We are not inclined to call in question their right to stand in that light, for they have no pretence to stand in any superior light, and that is not sufficient to give them priority over the plaintiff.
The decree of the chancellor is affirmed, with costs in this court, and remanded to the court of chancery to be carried into effect.