Wall v. . Rothrock

BeowN, J. This action is brought by plaintiff as trustee in bankruptcy of the Southmont Spoke, Hub and Handle Company to set aside a mortgage made by the bankrupt to the two defendants, one of whom, Rothroek, was president, and both of whom were directors of the said •corporation. The mortgage is dated February, 1913, was recorded 15 January, 1914, and secures the defendants as indorsers of four notes *390 of same date executed by tbe bankrupt to tbe Bank of Lexington for money loaned. Tbe plaintiffs have paid tbe notes and now seek to foreclose tbeir mortgage. Plaintiff in apt time requested the following instructions : 1. If tbe jury find from tbe evidence tbat tbe mortgage was authorized by tbe directors and not by tbe stockholders, you will answer tbe first issue “No.” 2. If tbe jury believe tbe evidence, they will answer tbe third issue “Yes.” These instructions tbe court properly declined to give. Tbe first prayer raises tbe general question as to tbe right of directors ever to mortgage tbe corporate -property without tbe consent of tbe stockholders. It is well settled tbat, as a general rule, tbe directors of a corporation, unless they are specially restrained by tbe charter or by-laws, have tbe power to borrow money with which to conduct tbe business and to secure payment by mortgage on tbe corporate property. 10 Cyc., 765. Tbe power to borrow money carries with it by implication tbe power to secure tbe loan by mortgage. 2 Beach on Corp., sec. 388; 1 Morawetz, sec. 346. Cook says, vol. 3, sec. 808: “It is now tbe established rule tbat tbe board of directors, without any action whatever by tbe stockholders, has tbe power to authorize tbe execution of a mortgage on tbe corporate property.” Same author, section 712, says: “Tbe stockholders, indeed, have very few functions. Tbe board of directors have tbe widest of powers. All tbe various acts and contracts which a corporation may enter into are entered into by and through tbe board of directors. Tbe board of directors make or authorize tbe making of notes, bills, mortgages, sales, deeds, liens, and contracts generally of tbe corporation.” Our statute, Rev. 1905, sec. 1005, appears to recognize inferentially tbe power of a board of directors to mortgage tbe corporate property. In Duke v. Markham, 105 N. C., 135, it is said by tbe present Chief Justice tbat “a president and cashier, as such, cannot execute a mortgage of corporate property without special authority from tbe board of directors or the stockholders.” Tbe other prayer was properly refused, because fraud is generally a question of fact, and, taking tbe evidence as a whole, tbe court could not as matter of law pronounce tbe transaction fraudulent and void. It is true tbat it is held in Edwards v. Supply Co., 150 N. C., 171, tbat a mortgage on all its property, made by a corporation under authority of its directors with a vote of tbe stockholders, to secure them in tbeir prior indorsements of tbe corporation’s notes negotiated for tbe benefit of tbe corporation is void; otherwise bad tbe mortgage been authorized at tbe time of tbe indorsements and receipt of tbe money to aid tbe corporation’s business. *391 Pa that case it is also held that when a mortgage has been made on all its property by a corporation to its officers to secure a preexisting debt, the company continuing in possession, it is evidence sufficient to sustain a holding of the referee that it was void as to other creditors. In that case the property consisted of a stock of goods continually being depleted, and the proposition is based upon the doctrine laid down in Cheatham v. Hawkins, 76 N. C., 335, and Cowan v. Phillips, 119 N. C., 26. In those eases it is held that such facts are not absolutely fraudulent in law, but such evidence of fraud that the burden of proof rests upon the party claiming under the mortgage to disprove the fraud. Facts which will justify a jury or a referee in finding fraud do not always warrant a court in adjudging fraud as matter of law. We think that there is no doubt that a board of directors, unless restricted by charter, may borrow money for the present needs of the corporation, and authorize certain directors to indorse the notes and secure them by mortgage on the corporate property, if done in good faith. This just principle is recognized by Chief Justice Clark in Edwards v. Supply Co., supra; by Mr. Justice Manning in Powell v. Lumber Co., 153 N. C., 56, quoting from Edwards v. Supply Co., and by Mr. Justice Hoke in Whitlock v. Alexander, 160 N. C., 479. There is nothing to hinder a director from loaning money and taking liens on the corporate property to secure him. If he can do that, he can lend his credit by indorsing its paper in order to obtain needed cash, and secure himself upon the corporation’s property. Such transactions are looked upon with suspicion, and strict proof of their bona fides is required. Hill v. Lumber Co., 113 N. C., 178; Oil Co. v. Marbury, 81 U. S., 587. But the directors, occupying a fiduciary relation, are not permitted to secure themselves against preexisting liabilities of the corporation upon which they are already bound, or for money they may have already loaned, when the corporation is in declining circumstances and verging on insolvency. They cannot be permitted to take advantage of their intimate knowledge of the corporation’s affairs for their own benefit at the expense of the general creditors. We think, however, that the plaintiff’s exceptions to the issues submitted are well taken. They .are not determinative of the controversy. There is no finding of fact as to when the debts were contracted' originally, whether the notes were renewal notes of other notes already indorsed by defendants or either of them, and which one. There is no need to submit the first and second issues tendered by plaintiff, as those facts appear to be admitted. The other three issues should have been submitted; also an issue as to whether at the time of the registration of the mortgage the corporation was in failing circumstances and verging on bankruptcy. It is immaterial that the corpora *392 tion was solvent at date of tbe mortgage.' The question is, What was its condition when the defendant directors put it on record and attempted to shelter themselves under, its protection as against the other creditors ? The defendant Rothrock seems to stand upon a somewhat different footing, if his evidence is taken to be true. According to his version, he was elected director and president, 13 February, 1913, and that was his first connection with the corporation. He was not on any of its outstanding notes, and refused to indorse the notes until the directors executed a corporate mortgage securing him against loss. This would be a legitimate transaction, according to the authorities cited heretofore. Nevertheless, if he failed to record the mortgage in order to give the corporation a fictitious credit, he would not be permitted to set it up against those who extended credit to the company between its execution and registration, and the same rule would apply to his codefendant, even if his indorsement was an original instead of a renewed liability. New trial.