Isham v. Bennington Iron Co.

The opinion of the court was delivered by Redfield,- J. This is a case of great magnitude, and, on many accounts, of considerable difficulty; and having been three times argued before this court at great length, and with such uncommon thoroughness and ability, as to leave little ground for expecting much additional aid in that way; and having obtained the opinion of all the members of the court, who can act in the determination of the case, we have deemed it proper not longer to delay the decision. Of the two members of the court now absent, who were present at both the former arguments, the Chief Justice concurs with the decision made below, but in some respects upon different grounds, perhaps, and Judge Bennett with the opinion which is now to be pronounced, as the opinion of the court; and he also concurs, • in the main, with Judge Kellogg and myself in the grounds of the opinion. Judge Davis, who concurs in the result, but not fully in the reasons and grounds by which we arrive at that conclusion, will deliver a separate opinion, — 245 — We have stated the results of the three consultations and intervening examinations of this case thus minutely, that the parties may be able to form a just estimate of the propriety of having the case farther discussed, and may perceive that every chance has been afforded the orator, which could reasonably be supposed to be of any avail. And we have all felt sincerely desirous of upholding the deed, if it could be done without too great violence to established principles. We will now state, as briefly as possible, the reasons, which have seemed to us invincible, in the way of such a determination. See Lord Denman’s remarks, at the the close of his opinion in Hilton v. Earl of Granville, 48 E. C. L. 730. It should be borne in mind, that here is no question in regard to the present validity of this deed, as against the corporation. They make no question of that kind; the bill is taken as confessed against them; and the orator is entitled to his decree, so far as they are concerned. And if it were originally defective as a statute conveyance, it is, at all events, evidence of a contract to convey ; and a court of equity will, in such cases, always decree a conveyance according to the contract. And if there were any defect of authority originally in the persons who professed to act on the part of the corporation, the deed has been so repeatedly recognized, by votes of the corporation, as a good deed, that the corporation would now be held fully to have ratified it; — but this will not give it effect, as a registered deed. But the great question in this case is, whether this deed was so executed, as to be entitled to registry, under our statute. If not, then clearly the orator cannot expect to prevail. For it has been too often determined to be now brought in question, that the registry of a defective deed is no notice of title to any one. It is not evidence of the facts which it contains, as the original would be. If defective, as a deed, in the formal requisites of its execution, or proof, it is not entitled to registration at all, anymore than any other instrument whatever. It will next be important to inquire, then, how a deed of land must be executed, to entitle it to registration. Upon this subject, we apprehend, there can be but one opinion. It must be executed according to the statute requisites, by which the registry of deeds , is established. It never has been contended, since the enactment — 246 — of our statutes requiring deeds of land to be executed with certain specified requisites, that a deed, executed merely according to the common law requirements, was good to convey the land, or that such a deed was entitled to registration. And to establish such a proposition, at any time, would be a virtual repeal of the statute, and would be especially strange, not to say absurd, after more than half a century of uniform acquiescence in regard to the construction of the statute. It must, then, be admitted upon all hands, that all deeds of land, to be entitled to registration, must conform substantially to the requisites of the statutes; in other words, that the statute mode of conveyance is exclusive of, and did, when it came in force, repeal all others, so far as it provided a new mode of conveyance. If, through design, or inadvertence, its provisions were wholly inapplicable to any class of persons, natural, or artificial, then, doubtless, their rights would not be affected by the statute in any way. They would remain just as they were before. In this state of the case it ¡has been made a serious question in the argument, whether the plaintiff’s deed was sufficient to have entitled it to registration, if •the statute of 1797 were still in force, at the time the deed was executed. This, it seems to us, is taking for granted the main question in the case. It seems to us, that, if we concede that corporations may convey land under the statute of 1815, and also under that of 1797, it follows, of course, that they may, also, in any of the modes pointed out by the common law, apd that natural persons may, also, — which we have already considered, as to natural- persons. But why artificial persons should any more be authorized to convey in two different modes, than natural persons, is certainly not easy to conjecture, It does not seem to us, that it ever would have occurred to any one, as a mere a priori argument. But when a case occurs, and especially one of such magnitude as the present, an anxiety to save it will suggest modes of argument, which nothing else, almost, will; and especially, when some technical requisite has been omitted through inadvertence, will courts go very far to uphold a conveyance,- — -and more especially, when it has been long acquiesced in. But this relaxation jnust have some limits, and must pot be ex — 247 — ercised by a mere arbitrary discretion of the court. If that were so, no one could ever form any opinion what would not be held good. Is there, then, any rule, by which this deed can be made good. No other, it seems to us, except to make out, that the statute of 1815 still left the statute of 1797 in force as to corporations. This it seems impossible to maintain with any degree of plausibility. The statute of 1797, it is acknowledged on all hands, had no natural adaptation to the case of corporations. It is matter of history, that the profession generally entertained serious doubts, whether a corporation could execute a deed in conformity with the statute of 1797, — whether, in fact, the common law mode of conveyance, as to corporations, was not still in force. This is evidenced by the repeated specific provisions, contained in the charters of corporations before 1815, directing the mode in which they should convey their real estate. This continued to be the very general practice of the legislature until the time of passing the statute of 1815; since that time these special provisions in charters have wholly ceased. These facts constitute a legislatve declaration, — 1, That the statute of 1797 was defective, as to its application to corporations; 2, That the statute of 1815 was passed to remedy that defect; 3, That subsequently corporations were expected to convey in accordance with the provisions of the latter statute. The case, then, seems to us very much the same, as if this statute of 1815 had been originally a part of the statute of 1797, — as it now is of the Revised Statutes. For all statutes in regard to the same subject matter are to be construed together, as parts of one system. If, then, it had been provided originally, that all deeds should be executed in the manner pointed out in the statute of 1797, but that corporations might convey land by the deed of their president, reciting the vote authorizing the conveyance, when it was found that the general provisions did not apply to corporations, could there be any doubt, that the mode pointed out, in regard to them, was intended to be the exclusive mode, in which such bodies should convey land? None, I apprehend, whatever. But is not the present case, in connection with the acknowledged history of the occasion of passing the statute of 1815, quite as conclusive as the case supposed? — 248 — If the provisions of the statute of 1815 had been included in the charter of this corporation, it would, it seems to us, be somewhat difficult to argue, that they might still convey their land, in disregard of the specific provisions of their charter, under the general law of 1797, which had no natural adaptation to the case of conveyances by corporations, and which is, in fact, known to have been adopted with principal reference, and probably exclusive reference, to natural persons. It seems to us such a course of argument will find few advocates bold enough to defend it. But is it not a universal principle, in regard to the law of corporations, that their charters are subject to all the general laws, in force at the time of their creation, as much, precisely, as if those general laws had been specifically repeated in their individual charters'? Was not that confessedly the intention of the legislature, in passing the statute of 18151 The facts already alluded to sufficiently show this. The expression in the statute of 1S15, “may convey” &c., is, it seems to us, not difficult of explanation. It is more consonant to sound sense and good taste, to use that form of expression, when the legislature is conferring a power, to be exercised at the discretion and for the benefit of the corporation. The form of expression “shall convey,” when they might never have occasion to convey, would be very inappropriate to express the idea intended. But when some duty is required of the corporation, as keeping records, then the appropriate term is “shall keep,” — which we find to be the case in this very statute. How very absurd would an interchange of these forms of expression sound, — The corporation may keep records, but shall convey land. We cannot, then, as we think, hold, that the statute of 1815 merely superadded another mode of conveyance by corporations, leaving the former mode, whatever it was, still in force, and giving them an election which to adopt, without violating the rules of construction already stated, and, still farther, holding that a subsequent statute, making other and more specific provisions as to the same subject matter, still leaves the former statute in force. We think no case can be found, going this length. It must he admitted, that the case cited from 3 Howard’s Rep. goes great lengths, — no doubt to the very extreme verge of sound construction; but it stops far short of what is here asked for. It is, in fact, rather an authority in favor — 249 — of the view we adopt, in one particular, when it is held, that the subsequent specific provisions did repeal the former general provisions, in requiring justices of the peace to be commissioned by the court, in order to take the acknowledgment of deeds in the case under consideration. Whether a new law, by implication, supersedes an old one upon the same subject cannot well be determined, in most cases, by any merely a priori rules of argument, or construction, but must depend very much upon the peculiar circumstances of each case, — the old and the new law, — the mischief and the remedy. If I were to illustrate the subject by a homely comparison, I could, perhaps, adopt none more in point, than that of the discontinuance of an old road by laying out a new one, merely, without any other act. If the new road wholly superseded any necessity whatever for the old one, then the old one would be discontinued by implication, — otherwise not. The statute of 1815 seems to have been intended to put deeds executed by corporations upon the same footing with other deeds, executed by virtue of a power, — that is, that the power itself should appear upon the record. Hence the vote authorizing the president to convey land must be recited in the deed. We do not consider, that the corporation must always convey their land by an officer called a president. It does not seem very important, what the name of the officer, or agent, is, or whether he have any name ; but the essence of the requisition is, that the deed must be executed in pursuance of some vote of the corporation, and that this vote must be recited in the deed. And this, we think, after the passing of the statute of 1815, was intended to be the uniform and the only mode of conveying land by corporations. I know of no rule of construction of statutes of more universal application, than that later and more specific statutes do, as a general rule, supersede former and more general statutes, so far as the new and more specific provisions go. I think, too, that the case of Wheelock v. Moulton, 15 Vt. 519, has fully decided this very case, and upon this very ground. For although there were two grounds urged in that case, and both, to my mind, free from doubt, yet the court were agreed only upon the first ground, — that a deed signed by all the corporators, and professing to convey the land of the corporation, was not binding upon the corporation, unless ex — 250 — ecuted. in pursuance of some vote of the corporation, and in conformity with the statute of 1815. I thought, to be sure, that that deed did not describe any land of the corporation; but upon that point the court were not agreed, and the case was decided, and was intended to be put, mainly upon the other ground. It is certainly a new mode of getting rid of the authority of a decision, that because it is put upon two grounds, it is authority upon neither. But under the statute of 1797 we have to adopt a very liberal construction, in order to bring this case within its provisions. It is almost as difficult to save this case here, as upon the other ground, it seems to me. 1. In regard to there being any proper evidence of the consent of the corporators to the deed, before its execution. And if the deed was not executed by the consent of the corporators, at the time of its registration, then no after confirmation by the corporation will give it validity, as a registered deed. And if not a valid registered deed, then it will not take precedence of the defendants’ attachments, unless upon proof of notice to them of the existence of the deed, after its confirmation by the corporation, — which is not attempted. Upon the point of the consent of the corporation to the execution of this deed, I readily admit, that we are not to require unreasonable or unusual proof. If a corporation keep no records, and are bylaw required to keep none, then we must be satisfied by’oral proof of the consent of the members; — and such is the rule at common law, and in many of the states. But in a case like the present, where the corporation keep continuous records of all their doings, as much as a .town, or city, or other municipal corporation, and where these and all similar corporations áre by express statute required to keep such “record of all their doings,” which shall be open to the inspection of all persons interested therein, is it unreasonable to require, that some consent to the conveyance shall be shown by such records, or at least by some vote of the corporation, when the members were regularly assembled for that purpose ? Unless we do require this, we disregard the statute of 1815 in another important particular, and go back to the common law, or the law of New York, instead of the law of Vermont. I do not insist, that there must have been a vote authorizing this — 251 — conveyance in express terms. But certainly there must have been this, or the appointment of such a board of directors, as would, by fair implication, possess this power. Nothing of this kind appeal's, —certainly, unless it is to be inferred from the fact of all the corporators being present at the time of the execution of this deed. But all except Hammond were present for the purpose merely of conveying their stock. They did not meet for the purpose of acting in regard to any corporate business, nor does it appear that, they were at all consulted in regard to it. But they now say they consented to the execution of the deed, — that is, I suppose they made no express resistance and now think they were willing at that time. This is just that convenient degree of uncertainty, that will permit one to incline the evidence of consent according to his present wishes, or prepossessions. If these corporators now felt an interest in defeating this mortgage, can it be doubted, that they might, with perfect and strict regard to truth, testify that no vote, or consent, of the corporation was ever given to this deed, and that a majority of the corporators did not dissent, because they were not consulted, —and thus leave it, where it is, the mere act of the chairman? It is not probable to my mind, that those, who advised the manner of executing this deed, supposed it was necessary to have the consent of any one, except Hammond, so far as the execution of the deed by the corporation was concerned, or that they had any suspicion, that the law governing the corporation required records of all their doings to be kept. This part of the statute is express; it is shall, and not may ; and why was this provision of the law also disregarded? For the same reason, doubtless, that the whole business of this corporation has been conducted in reference to the law of another state. It is not a little remarkable, that the New York conveyancers, who drew this deed, should not have thought of the propriety of conforming to the laws of the state where the corporation was created, and where it existed, if any where, and where the land was situated. Many of the views above expressed are certainly confirmed by the reasoning of the court in Bank of United States v. Dandridge, 12 Wheat. 64, 6 Pet. Cond. R. 440. 2. But if we could get over this point, it is still obvious, that this deed is not signed, within any fair and reasonable construction o,f — 252 — the statute of 1797. The statute requires a deed of land to be signed, for the very same reason that certain contracts are required by the statute of frauds to be signed, — that they may not be exposed to the uncertainty of oral proof. No one doubts, that such was the intention of our legislature, in requiring conveyances of land to be signed by the grantor. And I do not understand, that it is contended, that signing, in the case of a conveyance by natural persons, can be dispensed with. And I confess I do not well comprehend the force of the argument, which dispenses with signing by corporations. This is done in England, I admit, and in New York, in many cases. This is urged, first, upon the ground of necessity. But there can be nothing in this. A corporation may sign a deed, as well as seal it. Both must be done by some agent. And so may natural persons do both these acts by the hand of some one, in their presence. But still there is a necessity that the name of the grantor should be subscribed, to designate it as his deed. But it is farther said, that sealing, in the case of a corporation, is equivalent to signing and sealing by a natural person. But this is not true. The seal does not designate the corporation, any more than the seal of a natural person. If it were so, there might be some soundness in the argument. But being otherwise, I do not see why the name of the corporation should not be subscribed to the deed of land, as much as that of a natural person, and for the same reason. Upon any other construction, it seems to me, we make the conveyance to rest in parol, and that we might just as well dispense with signing in all cases. 3. I shall spend no time upon the acknowledgment. It is not attempted to be sustained upon the ground, that, being executed in New York, it may be proved according to their laws. Such a construction of our statute of conveyances has never obtained. Proof of a deed by a witness can only be resorted to in another state, when such a case occurs, as admits of proof in this state, as where the grantor refuses to acknowledge, is dead, or has removed, Sfc. But this acknowlegment is much like the rest of the deed. It is •no acknowledgment, no pretence of any such thing; it is proof, and nothing else, — treating Hammond as a subscribing witness to the deed. But, inasmuch as, if he could seal the deed, he could — 253 — also acknowledge it, we are asked to treat his testimony as an acknowledgment. That is undoubtely making it something, which it was never intended to be. But, as the one who attempted to prove it was the one to acknowledge it, if .any one had any such authority, — which is not shown, — if we could get along with the rest of the case, I think we could with this part of it. The case of Burrell v. Nahant Bank, 2 Met. 163, is no authority for this case. The only question there was, whether the mortgage was good against the bank; and the court held it good, on the ground of ratification. The case of Gordon v. Preston, 1 Watts 385, comes very near in point, but differs in one essential particular from the present case. That deed seems to have been in proper form, and the only objection was a defect of authority in those who executed it, — which defect, it was held, was cured by subsequent ratification. Perhaps, if this deed had been a full compliance with the requisites of the statute, we should not have held it void for any irregularity in the original power to execute it, after long acquiescence. The King v. Theodorick, 8 East 543, only shows, that all the corporators, being present, may transact any business, being competent for them to do. But this must be understood, when no statute of the corporation forbids such action in such manner, I have no doubt, that the members, being all present, might have conferred the authority; — and so might they in the case of Wheelock v. Moulton, 15 Vt. 519. But it was expressly held in that case, that all the corporators signing the deed-did not amount to the action of the corporation. There must-be some action as a corporation,— some consent given with intent to hind the corporation. Beckwith v. Windsor Manufacturing Co., 14 Conn. 594, was a case against the corporation merely, and the deed was executed in pursuance of a vote of the corporation. The only question in that case was, whether the vote must be under seal, or recorded in the town clerk’s office. Derby Canal Co. v. Wilmot, 9 East 360, seems to recognize the principle, that affixing the seal of a corporation is sufficient to pass the title to land, if it be done with that intent. But there is no pretence, that the common law of conveyance is in force here. The cases from New York show, most undoubtedly, that such is the rule there. 6 Paige 56. 3 Johns. 226. But these decisions cannot affect the present question. This deed is no doubt — 254 — good enough in New York, and was executed with reference to their laws. From the case of The Proprietors of the Mill Dam Foundry v. Hovey, 21 Pick. 417, it is evident the practice in Massachusetts is, that deeds of land by corporations are to be signed by some agent authorized to do so, as well as sealed. The result is, that the decree of the chancellor must be reversed, and the case be remanded to the court of chancery, with a mandate to dismiss the bill', with costs, as to all the defendants except the corporation, and to allow the orator to take such a decree as he may be advised against the corporation, consistent with the scope of his bill. The decree of the chancellor, dismissing the cross bill, is affirmed, with additional costs.