Motions for Rehearing.
The majority opinion in this case was read at the opening of the October Term in 1911, and the opinion and accompanying mandate were thereupon handed to counsel without directing an entry, to afford an opportunity for any suggestions which counsel might desire to make. No one representing the defendants being in attendance, the case was held open until the close of the term and then entered with the court.
The orators Robert J. Roberts and Ann Roberts now move for a reconsideration and revision of the conclusions of the Court and the proposed mandate in three respects; one relating to the effect of a decree heretofore entered on default in the court of chancery against the defendants interested only as holders of stock transferred from Hughes; one as to the effect whiph should be given to the final decree as regards such holders, if treated as still in the case, in the absence of a finding that they were holders for value; one regarding the construction given by this Court to that part of the report which relates to the 250 shares taken by the Farmers’ Bank as collateral security on certain notes.
The defendants move for a rehearing, and an opportunity to make further showing if necessary, in respect to' three points; first, as to the construction given by the Court to the term “overdraft” as used by the master with reference to the 100 shares placed with the Farmers’ Bank as collateral; second, as to the holding of the Court that the receivership proceedings, and the order made therein for an immediate transfer of the property to the receiver, deprived the corporation of the'power to issue further bonds; third, as to the failure of the court to recognize the pay-roll as a preferred claim, which could have been established as a lien upon the property prior to the orators’ mortgage.
This Court was aware that a decree of the court of chancery had been taken against defendant stockholders who had not ap*107peared, although uo special claim regarding it was made in argument; and such stockholders were treated simply as parties not defending. No reference to this decree was made in the orators’ briefs. The decree and a subsequent modification thereof, as these were said to appear from the files, were recited in the defendants’ brief; and it was afterwards said of these in the brief: “A decree hereinbefore referred to against such stock-holding defendants has been entered, and some advantage to orators may be claimed to accrue therefrom; we do not conceive what. Said decree was upon service by publication, and if effective has entirely destroyed the value of such stockholding defendants’ stock.”
We think the settled law applicable to pro confesso decrees against some of several defendants jointly charged justified us in treating these stockholders as we did. Our own case of Kopper v. Dyer, 59 Vt. 447, 9 Atl. 4, 59 Am. Rep. 742, was the only authority cited, but there are numerous decisions to the same effect. The nature, propriety and effect of such a decree are fully presented in Frow v. De La Vega, 15 Wall. 552, 21 L. Ed. 60. The final decree on the merits determines the rights of the defaulted defendants the same as if no decree pro confesso had been entered. The view of the ease taken in the opinion leaves no ground on which it can be said that the interest of E. R. Norton as holder of the 15 shares and the interests of the defaulted stockholders are distinct. Both are treated as holders for value without notice.
But the orators say there is. no evidence or finding that Norton as the holder of 15 shares, or any of the other owners of stock, were holders for value, and that it must be presumed in support of the decree for the orators that the chancellor inferred from the facts reported that they were not. The orators assume that the action of the Court is a reversal of an inference of fact drawn by the chancellor, but this is an error. The opinion proceeds upon the theory that the burden was on the orators to show that the stock was taken with notice or without paying value; and the orators having failed to meet this burden, the Court’s disposition of the matter was a conclusion of law and not an inference of fact.
The orators urge that the finding regarding the 250 shares should not be given, for the purpose of reversal, a construction different from that of the court below. The finding is that these *108shares were taken as collateral security on two notes of Robert R. Jones indorsed by Hughes. The natural and obvious construction is that the collateral was put up to procure the discount of the notes mentioned, and there was nothing in the case from which the court could infer anything different. There is a limit to the presumptions that will be made in support of a judgment. The rule is that this Court will presume in favor of the judgment that the court below inferred such facts from those certified up as it ought to have inferred, or as it fairly might have inferred. Pratt v. Page, 32 Vt. 13; Chamberlain v. Whitney, 65 Vt. 488, 27 Atl. 72.
It appears from an affidavit of counsel accompanying the orators’ motion that in the trial of the case the orators relied upon the decree of the court of chancery as being in force, and as relieving them from the necessity of procuring any findings as to the good faith of the stockholders purchasing from Hughes. It appears further from the brief submitted by the orators that they tried the case upon the theory that the company had taken the property with notice, and that the defendant stockholders, as purchasers of the stock of a corporation charged with notice, had the burden of showing that they had suffered from the purchase; and that in consequence of this no attempt was made by the orators to secure and present the facts in relation to these defendants. Whether these misapprehensions should, in the circumstances, entitle the orators to some further opportunity may be left for later consideration.
It appears also from the orators’’brief that counsel construed the finding as to the 250 shares as a finding that the stock was pledged to secure an existing indebtedness, and so did not apply to the master for a more definite finding; and they therefore request that the report be recommitted to the master for a more definite statement of his finding upon the evidence already before him. The consideration of this request may also be deferred. But the orators’ brief concludes with a request that, if the case is returned to the master on any ground, the recommittal may cover all their points.
The first objection raised by the defendants relates to the holding regarding the 100 shares which are found to have been taken to secure an overdraft. No distinction was made in argument between the two blocks of stock. The orators treated both as having been taken to secure existing debts. The defendants *109treated both as held in good faitb for a valuable consideration. The defendants now present the definitions of an overdraft given by standard dictionaries, and claim that the Court was not justified in its construction of the term. But after giving these definitions due consideration, we still think that a simple statement that stock was 'taken to secure “an overdraft” indicates that it was taken to make provision for an existing condition.
It is said that the question of the effect of the receivership proceedings upon the power of the corporation to issue its bonds as collateral to receiver’s certificates was not raised in the trial below nor in the argument made here; and that the briefs submitted nowhere raise or discuss any question touching the validity of the issue made. ¥e confine our consideration of this objection to what appears in the master’s report and the briefs; and the matters recited must be viewed in connection with the fact that no question was raised at any stage of the proceedings as to the validity of the $32,000 issue’. The master says: “I am requested by both parties to make certain findings relative to the Hughes Company bonding its property, ’ ’ and he thereupon refers to the records of the company as a correct statement of its doings, and reports the further facts set up in the majority opinion as to the manner in which the bonds were negotiated. The orators’ brief, after claiming that their lien is prior to any lien of the Farmers’ Bank represented by these bonds,’ and that the answer of the bank shows that it took them pending the litigation and therefore with notice, proceeds: “Moreover the bonds were issued as. collateral to certificates” to which the court did not attempt to give priority, “and were issued to the Adirondack Trust Company after the appointment of the receiver; * and later, but in the same connection, refers to the $32,000 issue as bonds against which no question is made. The presentation of the claim regarding the subsequent issue is meager, but accurate. The use of the word “moreover” characterizes the matters following as further grounds for questioning the validity ’ of the collateral security as plainly as if this were stated in so many words. The defendants evidently understood that the validity of these bonds was in question. Their argument upon the subject opens with the proposition that the mortgage bonds pledged to the Adirondack Trust Company to secure the advancement made by it to the Hughes Company, or its receiver, are valid and secured by the trust mortgage. In speaking of the author*110ity given the receiver to borrow money on his certificates, it refers to the contemporaneous order on the corporation that it forthwith execute and deliver to the receiver a conveyance and transfer of all its property, and proceeds as follows: “Equity will presume that to be done which ought to have been done, and that the property was thereupon immediately conveyed to the receiver.” It refers to the votes taken in the directors’ meetings of the 16th and 17th, and says that this corporate action must have placed the $18,000 of bonds under the security of the trust deed. It seems clear that if the power of the corporation to issue these bonds was not argued in terms, it was necessarily involved in matters which were argued. It is evident that the parties were presenting the case under the general law relating to receiverships, without considering that there were statutory provisions in New York affecting their rights. The defendants’ present claim that the corporation had the power to issue these bonds after the appointment of the receiver, is based upon various sections of the New York statutes attached to their motion, and not otherwise before the Court.
It is agreed on all sides that no fact, claim or suggestion touching the status of the pay-roll appeared in the case as submitted to the Court. The defendants now refer in support of their motion to a section of the New York statutes, and offer to show that the wages of the employees was a preferred claim. If this were shown, it would not make the bonds valid if unlawfully issued, nor create a lien upon the mortgaged property. It might give the holders of the bonds an equity which would enable the court to work out a remedy on other lines. The claim of the defendants amounts to this — that they have a line of defence of which they did not avail themselves on the trial, because of their failure to anticipate the Court’s disposition of some of the questions involved in matters necessarily for consideration. Some of the reasons which lead courts to look with disfavor upon applications of this kind are indicated in Morgan v. Houston, 25 Vt. 570.
The orators do not make the Court’s treatment of the question of estoppel a basis of their motion, but they incidentally suggest the possibility that the Court' may now be able to agree upon the views announced by the minority. The majority would willingly treat this suggestion as an application and act accordingly, if satisfied that they were in error. But after a careful *111reading of the minority opinion, which was prepared after the majority opinion was promulgated, we see no reason to change our view. In touching upon this matter we confine ourselves to what appears from the report and the exhibits. The transcript was not referred to, and it does not appear that any exceptions to the report were filed by the orators.
The dissenting opinion stands upon the ground that the defendants neither pleaded nor claimed in argument the estop"pel found by the Court; and that the Court was bound to presume in support of the decree that the chancellor inferred that the bonds were pledged by the receiver. The defendants, for obvious reasons, sought to make Roberts’ conduct estop all the orators from asserting priority over Hughes’ deed to the defendant company. But the facts of Roberts’ conduct had another and very obvious bearing. The delivery and acceptance of the Hughes deed are assumed by the votes of April 29th, and nothing appears to give them an earlier date. So the completion of the purchase and the authorization of the trust deed and bonds were both transactions of the meeting which acted on Gilroy’s report that the title was clear. The entire records of the stockholders’ and directors’ meetings, which showed Roberts’ attendance and action and covered copies of the papers eon-nected with the trust deed, were referred to and found correct; but, not content with this, the defendants requested and procured an insertion in the report itself of the facts that Roberts was present at all the stockholders’ and directors’ meetings until the receivership, which included the directors’ meetings of July 16th and 17th; that he signed the consent to the mortgage, which declared that it would.be a first lien on all the real estate; and that he moved the form of the bond, which contained the statement that it was a first mortgage bond. The defendants’ brief, while attempting to make the estoppel sustain the priority of the defendant company’s title deed, argues this group of subsequent facts as bearing upon Roberts alone, in a way which could not fail to suggest their true relation to the case. And in a subsequent part of the brief, where the claims of the defendant bank are specially considered, it is said to make strongly against the orators’ claim of priority as regards these bonds, that the orator Robert J. Roberts was present at both of the meetings “at which the issue of these last named bonds was specially authorized.” The fact that the defendants claimed a *112larger estoppel than the Court allows will not prevent their receiving such benefit from the claim as the case may warrant.
Nor can the majority yield the point regarding the issuance of the bonds. No question is made as to the fullness and exactness of our statement of the facts reported; and we cannot presume that the court below inferred from those facts that, the bonds were issued by the receiver without the semblance of an authorization from the court, and in violation of his official duty.
It is a common procedure in equity to permit amendments of the pleadings to correspond with the case as tried. Harrigan v. Bacon, 57 Vt. 644; Dwinell v. Bliss, 58 Vt. 353, 5 Atl. 317; Olmstead v. Abbott, 61 Vt. 281, 18 Atl. 315. The majority think this feature of the estoppel was within the issues of the case as tried, and an amendment of the answer in this respect may be had.
The manner in which the case is presented should be stated more fully. Both sides submit affidavits in support of their respective claims regarding the stock held by the Farmers ’ Bank. The defendants’ brief is accompanied by a transcript of the evidence taken by the master, for examination upon the points made. The orators attach to their brief in reply to the defendants an affidavit of counsel presenting statements made in the bi’ief submitted to the master by defendants, and certain requests for findings submitted by both parties; and further affidavits presenting, extracts from the petition for the discharge of the receiver and from the order made thereon. The defend.ants object to the consideration of the affidavits regarding the statements and requests of counsel, and ask that provision be made for a hearing on the question of fact if such affidavits are considered.
The questions regarding the stock held as collateral, and the question whether the validity of the bonds was raised and argued on the trial, have been disposed of without reference to the affidavits. The only matters covered by the opposing briefs which remain for disposition are those presenting the orators’ situation with regard to the 357 shares of stock as to which nd inquiry was made, and those relating to the claims of the defendants which depend upon proof of the laws of New York. If the report were to be recommitted for a further hearing on the claims of the defendants, it might be difficult to say why *113the benefit of a recommittal should be denied to the orators. A recommittal on the claims of both would involve a retrial of a large. part of the case, based wholly on the failure of the parties to anticipate certain lines of decision, as to the correctness of which no question is made. A recommittal on the claims of the defendants would sanction a change to new lines of inquiry, resting wholly on facts known at the time of the trial; and this after the property has been controlled by the defendants during eight years of contest. As the case stands, we think the discretion of the Court should be thrown in favor of closing the litigation.
Both motions domed.
Watson and Powers, JJ., dissent.