Nelson v. . Eaton

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 412 The grounds on which the demurrer was sustained in the Supreme Court are stated in the opinion as follows: "The trust instrument expressly specifying the terms on which the note came into the plaintiffs' hands, as trustees, expressly giving them the right to sell, c., but not to sue, the plaintiffs had no right to bring this action, as such trustees. There is no room for presumptions arising from their being the holders of the note, for they themselves set out the manner in which they hold it, and their rights over it. They had a right to sell it, without advertising, or otherwise giving notice; but with the express agreement before us, there is no place for *Page 413 presumption that they had a right to sue it as the owners and holders." I cannot assent to this position. The note constituted a perfect obligation against the defendant. He was bound to pay it to the person having the legal title to it. He was not interested in the trust, and the creation of it had no effect whatever upon his rights or duties. By the indorsement and transfer of the note to the plaintiffs, they obtained the legal title to it, and the right — the sole right — to demand and receive payment of it. The right of action to recover money attends upon the right to demand and receive it, and, I think, cannot be severed from it. (Flagg v. Munger, 5 Seld., 492.) If the plaintiffs could not maintain an action on the note, then no one could maintain it, for they alone had the legal title; and it would present a strange anomaly in the law if a note, absolutely due to a living person, could be so placed that no person could maintain an action upon it. If such cases can exist, this is not one of them. The power of sale given to the plaintiffs by the trust contract was designed to give them an authority which, by the mere transfer of the notes to them as collateral security, they would not have had. I think it was not designed to take away any power which the transfer of the legal title to the notes gave them. But if such was the design, even if the instrument of trust had contained an express agreement on the part of the plaintiffs not to sue the notes, it would not have aided the defendant in this action. Having the legal title to the note, they had a perfect right of action against the defendant, and he could not avail himself of their covenant with strangers not to prosecute such action. (Bank ofChenango v. Osgood, 4 Wend., 607-612.) Such an action might be a breach of trust, but that would not aid the defendant — the trust in no way affecting either his rights or his duties. The error in the judgment in this case has arisen from a failure to distinguish between the legal and equitable interests in the note, which have no connection with each other. The legal interest depends upon the indorsement and transfer of the note by the insurance company to the plaintiffs; and in that alone has the defendant *Page 414 any interest. That transfer being perfect, the plaintiffs' right of action was perfect. The trust did not in any way affect it. I have, thus far, assumed that the transfer of the note was valid. Its validity, however, is denied, first, on the ground that the insurance company had no power to create such a trust; and, second, that, if it had such power, the transfer was void for want of a previous resolution of the board of trustees authorizing it. It has often been decided that insurance companies, without any special authority for that purpose, possess the incidental power to borrow money; and such power, from the nature of their business, would seem to be indispensable to enable them to meet the sudden emergencies to which they are liable. (Furniss v.Gilchrist, 1 Sandf., 53; Curtis v. Leavitt, 15 N.Y., 9-219;Mead v. Keeler, 24 Barb., 20.) The power to borrow might include the power to obtain indorsers or sureties, and to secure them by a transfer of assets for that purpose; and it cannot be material whether such transfer should be directly to the indorser or to a trustee for his benefit. In either case, the assets would be equally held in trust. The power to create such a trust, by a corporation not specially authorized, was settled in the case ofCurtis v. Leavitt (supra). There are several conclusive answers to the objection that a resolution of the board of trustees was required to make the transfer of the note valid: 1. The statute only applies to transfers of corporate effects "exceeding the value of one thousand dollars." (1 R.S., p. 591, § 8.) The note transferred was $681 only, and all which appears beyond that is, that certain other notes were transferred — the amount not being shown. We cannot assume from this statement that the amount transferred exceeded one thousand dollars. We could hardly indulge such a presumption, if it were necessary to make the transaction legal: much less can we do so, when the effect would be to make it illegal. No inferences, not absolutely required by the facts alleged, can be allowed which will produce that result. *Page 415 2. If the notes transferred exceeded in value a thousand dollars, the court would not presume that the transfer had been made in violation of the statute. That is a fact, if it exists, to be shown in defence. "Acts done by a corporation, which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter." (Per STORY, J., in Bank of the United States v.Dandridge, 12 Wheat., 79.) "Illegality is never presumed: on the contrary, everything must be presumed to have been legally done, until the contrary is proved." (Bennett v. Clough, 1 B. A., 461.) 3. I am inclined to regard the averments of the complaint sufficient, if it were necessary for the plaintiffs to show affirmatively a compliance with the statute in question. (2 Kern., 436, 437; 22 How., 236.) The case differs very much from that in 9 Abbott (p. 198). It is not, however, necessary to decide this question; nor whether the want of a compliance with the statute is a defect of which the debtor could take advantage. (6 Seld., 60; 33 Barb., 340.) I doubt the soundness of the opinions expressed in these cases, that none but the corporation, or its creditors or stockholders, could impeach such a transaction, for the want of the previous action of the board of directors. The transfer in such case would be, not only unauthorized, but illegal (3 Kern., 119), and, I think, void, even as to strangers. However that may be, the plaintiffs here would be protected by the saving clause of the statute in favor of bona fide purchasers, if it were necessary for him to invoke that protection in his behalf. (1 R.S., p. 591, § 8;15 N.Y., 11.) The judgment of the general term should be reversed, and the order of the special term affirmed, with costs.