Southern Life Insurance & Trust Co. v. Lanier

SEMMES, J.;

This was a suit in Chancery, commenced in the name of the Southern Life Insurance and Trust Conrpany and the State of Florida, against A. II. Lanier.

The preliminary question made in argument, and raised by the answer of respondent, is that the State of Florida has no interest in the suit, and that, therefore, the bill should be dismissed. The objection is presented by special matter, set up in the answer by way of demurrer, under the provisions of our statute law. Thomp. Dig., 458, §9.

We do not doubt the correctness of the doctrine, or its application to this case, that, to sustain the character of a plaintiff, it is requsite to show in him an interest, either legal or equitable, in the subject matter of the suit. The principal facts stated in the bill, and relied on in support of the interest of the State, is, that by reason of certain liabilities incurred by the late Territory of Florida for this Company, under the authority of its charter, the bond and mortgage of respondent were deposited with the Governor of the Territory, to indemnify it against loss ; and that, upon the filing of the bill, the said bond and mortgage (which had been previously turned over to the Governor of the State,) was held by him in trust, and as a security for the ultimate payment and redemption of the liabilities of said Territory; and that the suit was brought at the instance of said Governor, for and in behalf of said State. It is a misconception of the term to say that these allegations, or any of them, are inferences of law. They are stated and relied on as matters of fact, and are all admitted by the demurrer to be true.

"Whether the State of Florida has, in any mode or form, incurred any liability in respect to this matter, is not a question for our consideration; nor do we so decide, or even intimate an opinion. In fact, as far as concerns the question before us, it is not necessary that there should have existed the remotest liability on the part of the State to authorize its being made a party to the suit: for if, upon the organization of the State Government, this bond and mortgage were delivered to the executive, and he as such held them in trust, as a security and means of indemnity for another party, it "was both proper and necessary that the State should have been made a complainant. It would seem scarcely necessary to refer to the manifest distinction between the case before ns and the cases of the.King of Spain vs. Machado, 4 Russ., 225; Cuff vs. Platell, ibid, 242, and other authorities to the same effect. In these cases, the entire want of interest on the part of some of the complainants, appeared on the face of the bill, and the demurrer was of course sustained by the Court. In the case of Makepeace vs. Haythorne, 4 Russ., 244, the objection did not appear on the face of the bill, but was raised by plea. In these cases the Court, in affirmation of the well settled doctrine on this subject, say that if a party has no interest in the suit, the bill is demurrable, if that fact appears on the bill; but if the fact does not appear on the bill, but is brought forward by plea, it is a good defence to the suit. The principles announced by the Court in these authorities, are directly adverse to the argument of respondent's counsel.

But independent of these views, a fátal objection to this demurrer is, that it is a speaking one. 1 Story’s Eq. P1.5 495. It alleges, in aid of itself, that the Territory of Florida in the firsf instance was not liable on its guarantee ; that the State is not the successor of the Territory as tq any liabilities incurred by the latter; that the bond and mortgage were not assigned to the State as a security; and that the Governor had no authority to institute suit with? out the authority of the General Assembly, who alone had power to enter into agreements recognizing the liability of the State ; and that the late Territory, through its Legislature, has, by repeated action, declared said guaranties null and void. All these facts may undoubtedly be true, but it was not the office of the demurrer to set them up in its support. The very attempt to do so is fatal to the demurrer. Being matters dehors the bill, they could only be raised by plea in order to be available. But the argument of counsel in support of. his demurrer proves too much ; for if it be true, as the answer states, that the State was made a party without due authority, then the rule of practice is of peculiar application, that where a person is made a co-plaintiff improperly, without his privity pr consent, the proper motion is that his name be stricken out, not that the bill be dismissed even as to him.

The respondent has, at this stage of the case, no cause of complaint. Our statute, which allows a defendant to set pp special matter in his answer, and claim the same benefit he would be entitled to if he had demurred to the bill, is biit an affirmance of the rule, of Chancery practice, as recognized by the English Courts ; and the construction given by those Courts to this, rule is, that only at the hearing of the cause such benefit can be insisted on, except in the case of multifariousness or misjoinder, in which case, if the defendant does not take tho objection in limjne, the Court, considering the mischief as already incurred, will not, except in a special case, allow it to prevail at the hearing, 2 Dan. Ch. Pr., Amer, Ed., 819, and. authorities cited.

If the respondent, as was his duty,, had presented this point in limine, the objection might have been corrected without prejudice to the rights of the Company, Omitting to do so, and going into the merits of the case, he waived his demurrer ; for it would be against every rule of propriety to allow a defendant to call upon a Court for a decree on the merits, and if a'gainst him, to fall back upon his demurrer, and invoke the judgment of the Court upon that. And to this extent does the argument of counsel lead us. Its effect would be to mislead opposing counsel, and embarbarrass the Court in thp discharge of its duty. ¥e feel no hesitancy in saying that a defendant should never be allowed, by such a device, to spring upon his adversary in the appellate tribunal, an objection he did not urge in the Court below, but by his course, induced both the Judge and counsel to suppose he had waived the objection. We know of no rule of Chancery practice which would authorize such a proceeding, and we feel no disposition to establish one.

We now proceed to the consideration of the merits of this suit; and, in view of the magnitude of the interest at stake, and with an anxious, desire of settling correctly the principles involved, we have bestowed all the time at the disposal of the Court to th§ consideration of the subject, aided as we have been by the very .able and elaborate im vestigation made by counsel.

The Bank was organized and went into operation in 1835.-In 1839, the Company re-issued stock, which had been suis rendered, under the provisions of the amendatory act of 1838, and the respondent, Lanier, became the purchaser of me hundred shares, for the payment of which he executed his bond and' mortgage to secure the sum of $10,000. Some short time thereafter, in right of his being a stockholder, .and upon the faith of his shares of stock, he borrowed from the bank the several sums of $6,000 and $917, for which he gave his notes. The bill is brought to foreclose the mortgage and recover the amounts due on the bond and notes.

Upon the part of the respondent, it is contended that the bond and mortgage were given without consideration, and that they are illegal and void,

First — Because the surrendered stock was issued by the Company contrary to the mode prescribed by the charter ;

Secondly■ — 'The capital stock of the bank could not be sold for bonds and mortgages ;

And thwdly — The respondent was induced to execute and deliver to the Company his bond and mortgage by the fraudulent representations of its agent.

No defence is urged against the payment of the notes for $6,917, further than that the amount borrowed was not specie or its equivalent, but bills of the bank, which it is alleged were at a discount.

The last point does not require consideration, for whether the fact be as stated or not, it cannot affect the liability of Lanier, or the validity of the contract. There was nothing illegal about the transaction. It was a voluntary act upon his part to receive bank bills and execute his notes payable in money.

To sustain the first position, it is insisted that the Commissioner and not the Company should have issued the surrendered stock, and that ten per cent, was requisite to be paid on each share, at the time of purchase, to make valid the transfer of stock. We find nothing in the charter, nor are we aware of any, rule of construction which would warrant such a conclusion.

First, as to the ten per cent.: The capital stock of the bank consisted of two millions of dollars. The Commissioners were directed in the first instance to open books to receive subscriptions to this stock, and it was required that ten per cent, should be paid to the Commissioners on each share, at the time of subscribing. So soon as all the capital stock was taken, and §200,000 was paid in, trustees were to be elected, the Governor to be notified of the fact, and, upon his proclamation, the Company became fully organized, and was authorized to commence business. All this it is conceded was done. Upon the payment of $200,-000, which was the first instalment of the capital stock, the sole object of requiring the ten per cent, was fully accomplished, and the Company became at once invested with all the acts and powers secured to it by the act of incorpotion.

With the view of aiding all subscribers, and relieving them from the penalty of a forfeiture of their stock, imposed by the tenth section of the original act, the Legislature, in 1838, by an amendment of the charter, authorized the Company, in its discretion, to allow any stockholder to surrender his certificate of capital stock, and take a certificate of full stock equal to the amount of payment on the stock so surrendered,' and the Company were to hold or re-issue such overplus stock. Upon what reason or authority can it be contended that the Company were compelled to require of the purchasers of this surrendered stock a payment of ten dollars on each share of their purchase ? It is not pretended that there is any provision in the act authorizing a surrender and re-issue which requires it. Eut it is said the terms of the original charter are broad and comprehensive, including all subscribers. This is true; but still it has exclusive reference to the subscribers before the corporation was organized, and before it had existence. The ten per cent, was required to be paid as a condition precedent to its existence, and it was paid by all the subscribers, in litoral compliance with the charter. There was no discretion in the Commissioners, who were but the agents of the government, clothed with a special trust. Their duty rvas imperative and well defined, and no subscription could be valid , without tbis pre-requisite. So soon as the $200,000 was paid in, the duties of the Commissioners in reference to the original subscribers ceased, and the special requirements of this part of the charter had been accomplished. The object and reason of the rule ceasing, why revive it, and force its application to the exercise of unrestricted authority, in the Company’s re-issuing its surrendered stock, when, too, the ten per cent, had been paid upon this identical stock, by the original sribscribers, before the surrender, and which was in the vaults of the bank ?

The question presented on this branch of the case is not a new one. In the leading case of Jenkins vs. The Union Turnpike Company, 1 Caine’s Cas. in Error, 85, Chancellor Lansing places the doctrine, in our opinion, upon the true ground — that the power of the Commissioners was restricted to a certain mode of receiving subscriptions. The acts to be performed by them were preparatory to the cretion of the corporation. They had no discretion or latitude of action, and to give effect to their acts, in receiving subscriptions and exacting payments, the mode prescribed must be strictly pursued ; otherwise, there Would be no contract with the subscribers, because there was no corporation to deliver tbe stock, and consequently no consideration. But when the corporation was in existence, the directors might dispense with the exaction of the first payment. The same well founded distinction between subscription for stock to Commissioners, preparatory to tbe organization of the corporation, and to a corporation in esse, is fully recognized by all the New York decisions. Vide 19 John. R., 218; 10 John R., 154; 14 John R., 238. See also, Lewis vs. Roberts, 13 Smede & Mar., 558; King vs. Elliot, 5 Smedfe & Mar., 428. Even this principle,' in many cases, has been considered too rigid in its application, and it has been modified by the decisions of other States. In fact, there would seetn to exist no good reason for holding a contract for subscription to stock to be illegal, because the payment in cash of the first instalment was not exacted, unless a cash capital was requisite, as in the case of a banking institution, or where, by the terms of the charter, it is made a condition precedent. See Vt. Central R. R. Co. vs. Clayes, 21 Ver. R., 31; Selma and T. R. R. vs. Rountree, 7 Ala. R., 670; Henry et al. vs. Vamilia and A. R. R. Co., 17 Ohio R., 190; Chester Glass Co. vs. Dewy, 16 Mass. R., 94; Minor vs. Mechanic Bank of A., 1 Peters, 46. The effect of these authorities is sought tó' be evaded in- the argument, by contending that this institution was not authorized to. do a banking business until the amendatory act of 1838. If this were true, it would in no aspect of the case affect the merits of the question we are considering. The fourth section of the act authorizes the Company to use two-fifths of the capital stock paid in, or which may thereafter be paid in, for ordinary banking purposes. It was an additional grant to the Company, no,t impairing or restricting its previous powers, and it was optionary on the part of the directors to use two-fifths of the cajutal at that time paid in, for banking purposes, without calling in any further instalments for that ■ purpose, or not avail itself of the right at all, but continue in the full exercise of its original powers, in investing its capital stock in bonds and mortgages. But it is not true that this corporation had not banking powers previous to the act of 1838. By the 19th section of the original act, it had the right to issue bills to ^ the amount of the capital actually paid in. It had the additional right of receiving funds on deposit, and to discount and purchase promissory notes and bills of exchange. These powers constitute all the elements of banking, as understood in this country. See the case of the Bank of Augusta vs. Earl, Peters S. C. R.

It is further insisted that the Commissioners and not the Company should have re-issued the surrendered stock. A conclusive answer to this is, that in the case of subscription to stock in the first instance, and in the case of "forfeited stock, the Commissioners were required to oj)en books for subscription — in the first case by express terms, and in the latter by implication — while in the case of surrendered stock, the corporation itself was authorized u to hold ■or re-issue 'it.” The grant of power to the Company to accept the surrender and re-issue the stock, is as well-defined and unrestricted as language can make it; and unless it can be shown that the Commissioners and the body corpo-' rate are one ;and the same, there is no foundation for the argument. The question is not, as is supposed, whether there is in fact any distinction in the stock itself when forfeited or surrendered, but whether the charter has not expressly defined the grant, by providing that the Commissioners shall offer the one for subscription, and the Company re-issue the other.

If it be true that the forfeited stock could only be subscribed for through the Oommissiohers, it was "a wise provision of the act .of 1838 which gave to the Company this right of re-issuing its surrendered, stock, and it was doubtless designed to remedy the evil of the old law, by providing against any contingency which might prevent the Commissioners from being present at all times to open books for subscription. By the 9th section of the original charter three persons, by name, were appointed Commissioners. After they had performed the duty assigned them, preparatory to the Company’s being organized, who were to act for them in case of their death or absence ? No provision is made for supplying their place or appointing .new ones. Was it in the contemplation, of the Legislature that these three persons should, under all the changes of life, be present at all times, to dispose of the surrendered stock, during the fifty years’ existence of the corporation ? Or does not the new law, in providing a remedy, fully meet the mischief?

The next objection taken by the respondent is, that the surrendered stock could not be sold for bonds and mortgages; and a similar course of reasoning is adopted to sustain this position as the first, but i't is equally artificial and untenable.

By the sixth section of the original act, the corporation was required to loan its entire capital of two millions upon bonds and mortgages. One of the leading objects contemplated by the law, was to invest the proceeds of the sale of stock in this kind of security ; a fund permanent and secure, yielding interest, and-to which the creditors of the bank could look as a security for the ultimate payment of its liabilities. Not only the $200,000 paid in was to be invested in these securities, but all subsequent instalments, so that, if money was paid for stock, it was to be at once converted into bonds and mortgages. After the bank was in esse, it was an unmeaning and idle ceremony to require payments in cash, and then invest the latter in bonds and mortgages. In the absence of all positive inhibition by the law, what objection could be raised to investing the stock in the first instance in this security ? The same purpose is effected by one instead of a double operation, and no sensible distinction between them can be conceived. But it is said “ that it is not the stoele which is to be invested in bonds and mortgages, but the capital.” But where exists the distinction ? The stock represents the capital, whether in money or bonds and mortgages. ' The' stockholder’s certificate of stock is evidence of the interest he has in the capital, and nothing more. Whatever amount he has contributed to the general fund, whether in money or bonds and mortgages, his interest ■ in the capital is the same. In investing the stock, you invest the capital of the bank.

No mode is pointed out as to re-issuing this surrendered stock. But it belonged to the Company, and they could dispose of it in any mode not inconsistent with their gen? eral powers. They could sell it at public or private sale, lor cash or on a credit. They had as much power as to its disposition as though'it had been hypothecated to the Comr pany, and been forfeited by the terms of the hypothecation.

It is evident that, if the construction given to the act of 1838 is to prevail, then, by some process unknown to us, the entire provisions of the old law become incorporated in thó new. Bor the same rule of construction that would apply one provision must apply all, and the same mode and formalities are to be observed in re-issuing the surrendered stock as before the organization of the Company, The "board of Commissioners are to be revived, if they are in lifó ; ifmot, the stock is to remain fruitless and dead upon the hands of the Company. The ten per cent, is to be paid and the residue is to be sold,- not on a credit for bonds and mortgages, but to remain payable in instalments, in. such amounts and at such time§ as the trustees may direct. Thus, instead of conferring on the Company an additional franchise, and amending the old law, as it purported to do, it but re-enacted (and all by intendment,) its entire proyisions,.

There is a manifest difference between the original subscribers and the purchasers of the re-issued stack. The former could surrender their shares and take a certificate for full stock. The latter could not, even with the assent of the directors, have discharged their liability by a surrender, for it would have been a fraud upon the creditors. Nor could the bank have compelled a forfeiture of their stock. Independent of this, in what possible mode were the dividends to be made to the stockholders ? The first class hold certificates for full stock, the whole amount paid, while the purchasers of the re-issued stock are to. pay but ten per cent, on their purchase. Are the latter entitled to the same dividends as the former? Orare two distinct classes of stockholders to exist in the same Company, with distinct rights and privileges, depending upon no fixed rule, but subject to constant change and modification, by the amount of instalments which each may pay on his stock? '

The two acts are entirely independent of and inconsistent with each other, and no rule of construction can reconcile them. The first is a restriction as to the mode and manner of disposing of stock, with the object and purpose clearly .defined; the latter is an unconditional grant of power, only restrained by the general object and policy of the law. The'principle cannot be questioned, tbat where a grant of power is clearly defined, and no mode is prescribed for its exercise, it is for the corporation to adopt such mode as in its judgment will secure the purpose contemplated. And so well recognized is this doctrine, that as a general rule a grant specifying the mode and manner ■ of exercising powers, is construed as merely directory, unless there are negative words, excluding the right to adopt any other mode ; and restrictions upon grants of power, designed for the protection of creditors, are not to be cop-. sti-ued to defeat that puposo. The charter of this bank, by the twenty-sixth section; is to receive from the Courts u a favorable construction but so far from the one given it being consistent with the object of its' creation, it defeats both the reason and the spirit of its provisions, by embarrassing the corporation in the exercise of clear and well-defined powers.

But it is said the respondent was induced to become a stockholder by reason of the fraudulent representations of the Bank or its agent; and numerous familiar elementary principles, as to fraud and illegality, have been invoked and zealously pressed upon tbe Court. But their application to tliis case is entirely misconceived. The matter of fraud, in the first instance, is a mere question of fact, and we have in vain searched the record before us for evidence to sustain it. It is said the Bank was insolvent in 1839, when Lanier purchased his stock. The piroof is, that, though embarrassed, it was solvent in 1840, and paying specie; and that this embarrassment and final insolvency were mainly occasioned by the want of good faith upon the part of the stockholders, to meet their liabilities. And if Lanier bas.failed to realize all tbe advantages which h,e seems to have expected, on becoming a stockholder, it should be recollected that he has contributed to produce the very state of things of which he now complains. The loose conjectures of witnesses, as to the conditidn of the Bank in 1839, based upon no knowledge of tbeir own, but derived from others who had as little means of information, could have but little weight under any circumstances, but especially when contradicted by tbe tben officers of tbe institution. There is no evidence that tbe agent ever made to tbe respondent any representations as to the solvency of the Bank, or as to any other matter upon which he l’ests the question of fraud. But conceding the fact to be as aL leged, it was his duty, upon a discovery of the fraud, to have taken immediate steps for the rescisión of his contract. Story’s Eq. Jur. § 190-1-2-3-5.

According to his own statement, he first discovered the alleged fraud when he applied to the Bank for the loan of the $6,917 on the pledge of his stock, which he received in bills of the Bank, and for aught that is known, used as money. Afterwards we find him renewing his notes for this amount, from time to time, without objection and without complaint; holding himself out as a tona fide stockholder from 1839 until the filing of his answer to this bill; giving faith and credit to the institution as such stockholder, and enjoying all the advantages 'of such a relation. Were the facts true, his defence has 'no foundation in law or morals. By his repeated ratification of the acts of which he complains, and to which he was a willing party, he is forever estopi^ed from setting up such a defence, especially when the assets of the Bank would thereby be diminished, and the rights of creditors sacrificed. The means devised by the law to protect the public against loss, cannot be invoked to consummate the evil it was designed to avoid, by releasing him from a contract, the fruits of which he has already enjoyed.

There is one other matter to which, in our opinion, undue importance has been given, yet in consequence of its having contributed mainly to a difference of opinion among the members of the Court, we feel bound to notice. It is' said the fifth section of the amendatory act of 1838, which provides 'that the company may call in the residue of its capital stock at any time within the period of five years from January, 1839, restrains, by implication, the power of the company from re-issuing any of its surrendered stock, after that time ; that, as a consequence, the company, in the sale of this surrendered stock, had no authority to extend the time of payment beyond that period; and that the credit given to Lanier for five years from July, 1839, was in violation of the charter) and the contract of sale'and purchase therefore void. By what process of reasoning* all this is arrived at, we are at a loss to conceive. Were the premises true) it would be no difficult matter to show} from principle and authority, that the extension of time did not affect the validity of the sale, and that it does not lie in the mouth of Lanier, for this cause, to avoid his contract, which, as between him and the company, was founded upon a good and sufficient consideration; But the positions assumed are not warranted by any fair construction of the charter, and cannot be sustained.

If reference is had-to the 12th section of the original act of incorporation, and the amendatory acts of -1836 and 1837, in connection with the 5th section of the act of 1838, it is evident that the latter) in authorizing the company to “ call in -the residue of its capital stock,” has exclusive reference to the stock originally'subscribed for, and the payments for which were due and then outstanding. To make the whole charter consistent with itself, these several sections, treating of the same subject matter, should be construed in reference to each other. By the 12th section of the original act) the subscribers to stock were required to 'pay ten per cent, in cash on each share ; ten per cent, at the expiration of six months thereafter, and the “ whole amount remaining due” was liable to be called in by the Trustees at any time within three years from the date of subscription. The shares of every stockholder omitting to make such payment, within the time prescribed, became forfeited, together with all previous payments made thereon. The amendatory acts of the two following years authorized the company to extend these payments — the second instalment from six months to three years, and the residue from three to five years from the timé of subscribing. This gave the stockholders until some time in 1840 to pay up the remaining’ instalments then due. The act of 1838 authorized the Company to” extend a further indulgence of five years, from January, 1839. It provides for the calling in, at any time within a limited period, the residue of its capital stock — that is,- the amo’imt then remaining due, and which represented the capital stock subscribed for. All the capital stock of the bank had keen taken, and the instalments liable’, as we have seen, to be called in at any time by the trustees, but who could, in their discretion, postpone the payment to the'time designated by the act of 1838. How is it possible to' extend the provisions of this act to stock which, after the passage o'f the law, might be surrendered to and re-issued by the Company,- under á new grant of power? The re-issued stock is not subscribed for as was required in the sale of stock in the first instance. The latter was payable in instalments, at the pleasure of the trustees, and subject at any moment to forfeiture. .But upon the Company’s accepting a surrender of stock, under the act of 1838, it could hold or re-issué it, in any mode it deemed proper, consistent with the leading objects of the charter. The sale of this stock to Lanier, for his bond and mortgage,_was not subject to the payment of instalments, to be called in at tbe pleasure of the Company, but it was absolute and Unconditional. The contract of sale and purchase was complete, the purchaser holding a full and perfect title to the stock, subject to no recall, no forfeiture or conditions.

It must result from the argument,- which assumes that the contract of sale was illegal, because the credit given to Lanier was more than five years from January, 1839, that had the credit been within five years it would have-been legal. Suppose it to have been so, and that Lanier, on purchasing his shares,- had paid in cash the ten per cent., and given his bond and mortgage for the residue, payable in four years. Gould the Company have recalled in this stock? or, in other words, have enforced the payment of this bond, which represented the stock, before its maturity ? If the argument be true, the Company could, under this fifth section, exercise its unquestionable power of calling in the stock at any time within five years, by enforcing payment of the bond, at any moment after it was executed. The very absurdity to which the argument leads us, is a sufficient answer to its soundness.

.Again — Suppose this surrendered stock had been sold to Lanier for cash, and immediately the Company had loaned the same to Mm on his bond and mortgage, for five years, or less time — these securities still represented the identical stock held by Lanier, and the position of the parties would, in legal contemplation, be altogether the same as now. Could the bank call in this stock before the maturity of the bond ? Why not, if it has the power claimed for it under the fifth section ? Is its power become suddenly paralized by simply entering into a contract which it is conceded would be a legitimate and legal one, under the provisions of its charter ? The entire argument is necessarily based upon the hypothesis that although the bank has ample power to dispose of its surrendered stock, yet, under the same law which clothes it with this power, it can make no contract for its sale which it cannot enforce at any time within five years from January, 1839 — -thus by one sweeping construction denying to the Company the right of investing its capital stock in bonds and mortgages, a right hitherto unquestioned in the Company, and made by its charter one of the great and leading objects of the institution .

At the passage of the act of 1838, the first instalment upon all the shares, amounting to $200,000, had been paid in. Now, if the stockholders choose to avoid a forfeiture, by availing themselves, as they doubtless would do, of the privilege of surrendering their unpaid stock, then the effect of the construction given to this act is to throw upon the Company all of this surrendered stock, without - the power to re-issue it for bonds and mortgages, and thus reduce the capital of the bank from two millions to $200,000, when by tbe very terms of the charter, the Company had the power of increasing it to four millions.

If Lanier is to be considered a subscriber to stock from July, 1839, the time of his purchase, then the Company were authorized, under the original and amendatory acts of 1836 and 1837, to give him a credit of five years from the date of his subscription. But if tbe act of 1838 applies to the re-issued stock, then, in tbe case of Lanier, and all others who might purchase stock after January, 1839, the provisions of the act instead of being, as is conceded, an extension of tbe time of payment before allowed, would be a limitation; and thus by tbe rule of interpretation adopted, tbe fifth section would extend the time of payment to the first subscribers, and without any words to that effect, limit it to others, who it is contended could only become stockholders by subscribing in the same mode and under the same rules and restrictions as originally provided. It is a strange rule of construction that would thus construe an express grant, which, while on its face it extended the power of a corporation, was to be considered as a restriction on its original powers. And it is something new in tbe history of corporations that this institution, then in prosperous circumstances, witb a charter containing most extraordinary grants of power, should be represented but three years after its organization as a suppliant before the Legislature, praying that its privileges be curtailed, and that the pqwer under which it could exercise its corporate franchises for the term of fifty years, should bo limited to five years from January, 1839.

The construction which is sought to be given to this act, is at variance with both the letter and spirit of the charter, and would lead to endless embarrassment and difficulty. The fifth section of the act, it is manifest, has reference exclusively to contracts then subsisting, and cannot apply to future contracts, in relation to the sale of surrendered stock. The third section of the same act contains a new grant to the corporation, well defined as, to power, and unrestricted as to time — a power which the Oomjuany could legitimately exercise in the sale of its stock, as often as it was surrendered, and within, the duration of its charter.

The substance of the. entire defence made in this case is based upon the alleged misconduct on the part of the directors of this institution. To say that a party can avoid his contract, and thereby diminish the fund which was, designed as a security, for the benefit of the public, upon tbe pretence that there was some abuse of the corporate powers, pr mismanagement o.n the part of the Board of Directors, in making the contract, is to pervert the well settled principles of law, and, under color of its sanction, to, open the. fioor for the. consummation of fraud upon individuals and the public. Neither party can escape the obligation created by the sale and purchase of this stock. Admitting the. contract to have been made contrar y to the letter of the pharter, it 'is no,t thereby void, and the respondent cannot avail himself of any merely unlawful act by himself and the directors, whether only designed or fully consummated, to perpetrate a greater fraud on the creditors of the bank. See 16 Serg. and Rawl., 144-

In the case of the Bank of South Carolina vs. Hammond, 1 Rich. L, Rep., 288, the defence was, that the contract was in violation of tlio charter, and void. The Court held, that a contract with a corporation may be binding on the parties, though it was an abuse of the corporate powers, and for which the corporation was answerable to the Government which created it; and that it was too strict to insist that a power which is contained in a general grant, and which in various forms may be pertinent to the purpose of a corporation, may be restricted to a particular form of direction for its exercise. The same defence waa relied on in the case of Little vs. O’Brian, 9 Mass. R., 423, and the Court say, whether for this violation of the charter, the Government may not seize their franchises, upon due process, is a question not now before us. It is sufficient to say it does not lie in the mouth of a stockholder for this cause, to avoid his contract, which as between him and the company, was made upon a sufficient considera-, tion. In the case of Fleckner vs. Bank U. S., 8 Wheat., 338, the Court say, that the defence set up was merely a violation of the charter, for which a remedy may be applied by the Government, and conceding the bank to have violated its charter in this particular transaction, it is not easy to perceive how that objection could be available. The act did'not say that such a transaction or contract was ipsofaeto. void. It remained to be shown how if the bank had a general right to discount notes, a contract, not made voidbj the act itself, could on that account be avoided by the party. See also Chester Glass Co. vs. Dewy, 16 Mass. R., 94.

These authorities are based upon this general principle, that all acts of incorporation are held to be directory unless they expressly avoid all security taken other than that prescribed, and that although the transaction may be culpablo on the part of the directors, and ground of forfeiture, in a question'between the Government and corporation, yet the security taken may be enforced, against him who gave it. Ang. & Ames, Corp., 190, and Palmer vs. Lawrence, 3 Sanford R., 162; Brower vs. Appleby, 1 ibid. 108.

It is conceded that this institution is insolvent, and it connot be disputed that when a corporation becomes insolvent, the officers are trustees for creditors, and the same principles of law which would be applicable to a suit in favor of creditors, would apply in all their force to the case before us.

For the reasons contained in this opinion, we are compelled to reverse the opinion of the Court below, and the complainant is entitled to a decree of foreclosure, with costs, and for the amount of principal and -interest due upon the bond and mortgage.