Fidelity Etc. Co. v. West. Penn. Etc. R.

OpinioN, Me. Justice Williams : The fund for distribution in this case was raised by a sale of the franchises, roadbed, and other property of the West. Penn. & Shenango Connecting Railroad Company. The sale was made under a 'decree of the court below in a proceeding begun by the Fidelity Insurance, Trust & Safe-Deposit Company, the trustee named in the mortgage or trust deed given by the railroad company to secure its bonds, for the foreclosure of the mortgage and the sale of the mortgaged property. By the terms of the decree, the sale divested all liens, and passed an unencumbered title to the purchaser. The proceeds are claimed by the bondholders, and are insufficient to pay them. The appellants are general creditors and claim the right to a pro rata share in the fund. It appears that the railroad company had an authorized capital of five hundred thousand dollars, all of which had been subscribed, but only twelve thousand of which had been paid. Its right to borrow money on the security of a mortgage of its franchises, was limited by law, in the clearest manner, to twice the amount of its paid-up capital. The directors, utterly disregarding the law and their own official duty, authorized a loan of four hundred thousand dollars, and executed a mortgage on the franchises of the company and its unbuilt line of road to secure bonds for that sum. The bonds were issued, negotiated, and are held or represented by the appellees. The position of the general creditors is, that, be [504] cause tbe mortgage was unauthorized it is not a lien, and, as evidence of indebtedness, is of no higher grade than the notes or other securities held by themselves. This raises one question. It must be conceded at the outset that the mortgage was unauthorized, and might be held to be inoperative and void if proper parties were before us. This court expressed its opinion upon the conduct of the directors of this road in Reed’s App., 122 Pa. 565, and characterized it as a “ clear and highly reprehensible violation of law.” The language is none too strong. The remedy is for the law-makers, and it is to be hoped 'that punishments will be provided for the directors who authorize, and the officers who execute, such mortgages, and for the financial agents who negotiate the bonds so unlawfully issued, of sufficient severity to protect an innocent and confiding public against the repetition of such gross and shameless frauds. But none of the guilty parties are before us. Their victims, the holders of the bonds, are the claimants, and we are to consider their rights in the premises. If this contest were between them and the company, it is plain that the company could not be heard to allege its fraud as a defence against those whom it had defrauded. By making the mortgage and negotiating the bonds, it represented to the public that its paid-up capital was sufficiently large to authorize the loan. It would be estopped from denying the truth of that representation now, when called upon to pay the bonds so negotiated. It cannot keep the money which it secured as the price of the bonds, and defend against their payment on the plea of ultra vires. If a stockholder or other party interested had asked it, the court would have enjoined against the execution of the mortgage, or the negotiation of the bonds, or the use of the money received for them; but no one asked it. The fraud was carried out without interruption, and the money obtained by means of it is gone. The company is insolvent. The property pledged for the payment of this unauthorized loan has been sold, and its proceeds are before us. Who is entitled to take them ? As between the bondholders and the company, the mortgage was a lien on the property, and is now a lien on the proceeds. This was held in Reed’s Appeal, supra. Such being the fact, the bondholders are entitled to the money as against the company and all persons [505] bolding under it with notice of their position. The mortgage was authorized, executed, and recorded, and the negotiation of the bonds was in progress, when the appellants gave the credits on which their claim is based. They had full notice of the mortgage, and must be regarded as electing to give credit subject to the mortgage. The decree of the court below left them in no worse position than that which they voluntarily assumed, and they have no right to ask us to place them in a better one. The question before us is thus seen to be, not one of the power of the company to execute such a mortgage, but of the right of the company and those standing in the same position, or deriving rights from it with full notice, to set up its fraud as a defence against the victims of that fraud. The constitutional provision relied on is not applicable. The debt is not fictitious, though the securities may turn out to be largely so. The position of the Pennsylvania Railroad as a holder of interest coupons is not different from that of any other creditor whose advances were made with full notice of the mortgage. The West. Penn. & Shenango Connecting Railroad Company defrauded its bondholders, when it sold them bonds that rested on no real security and were issued without the authority of law; but it could not diminish the value of such securities as were pledged, by a private arrangement that coupons paid in accordance with their terms should be treated as unpaid, and that parties advancing the money, with which to pay them, should be treated as original holders and be allowed to share in the proceeds of the mortgaged property equally with the holders of the bonds. The bondholders are the only parties who could make such an arrangement, and they have not been consulted. The judgment is-affirmed.