The persons who became “a body politic and corporate,” under the name of the “ Secor Sewing Maсhine Company,” were made- capable of buying, purchasing, holding and conveying in their corporate name аny lands, goods, wares and merchandise, necessary to enable the company to carry on the operаtions named in their certificate of incorporation. But while a certain limited number of the stockholders, to be сalled trustees, were empowered in that character to manage this property and the stock and concerns of the company, neither in a corporate capacity, nor through its trustees, was it permitted to mortgage the same without first obtaining and filing “ the written assent of the stockholders owning at 'least two-thirds of the capital stoсk of such ” company.
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(Laws of 1848, chap. 40, §§ 2, 3; Laws of 1864, chap. 517; Laws of 1871, chap. 481.) It is noticeable that there is thus callеd into action, the corporation as an artificial entity, the body of the trustees as its agent, and. lastly, the constituеnt members of the corporation or the several individuals composing it. To each of these a duty is assigned, and tо make valid the transaction now before us, it is plain that something more..than corporate action was requirеd. The corporation might become a party to the mortgage, and the trustees direct its officers to execute it; but therejnugt still be - the-assent of the stockholder. The will of the whole body, expressed by vote or resolution,- cannot take its place. The name of the corporation is signed to the assent. This, if it amounts to any thing, must be the result of corporate, not individual, action. It was signed by its officers, and their act to bind even the corporation must have been official; it can have no force as representing an individual. As to nine hundred and forty shares, therefore, there is no other assent to the mortgage in question than that of the corporation. The mortgage itself must be deemed a сorporate act, and assent thereto by the same body can give it no additional validity. As to those shares assent has not been given. It follows also that as the corporation cannot assent for the stockholders, neither can one stockholder for another ; nor can one who assents on the strength of stock standing in his own name be deemed to represent a proportionate amount of the stock owned by the corporation. It is claimed, however, by the respondent that if neither the corporation nor the general stockholders can be deеmed to represent, by their assents, the nine hundred and forty shares, they should be deducted from the whole number, and then the assеnts of the stockholders would be enough. But however this may be with the residue, the shares transferred to Conkling ought not to be so trеated. As to them, at least, there was no merger in the general fund of the company. They were, in the first instance, duly issued fоr value received by it, and might be lawfully repurchased or taken in payment of debts due or otherwise acquired by the corporation. In some way it had become the owner of these
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shares, not for the purpose of diminishing its caрital stock, but for enjoyment as property. As such they stood upon its books,' until in the regular transaction of business the stoсk was transferred to Oonkling. The. company had a right to hold it unextinguished, and a right to reissue it.
(City Bank of Columbus
v.
Bruce and
Fox,
The judgment appealed from should, therefore, be affirmed, with costs.
All concur, except Folger, Oh. J., absent.
Judgment affirmed.