Ryan v. Vanlandingham

Gookins, J. This action was brought hj Ryan, as assignee of the Bank of Illinois, against Vanlandingham, as the maker of two promissory notes, each for the sum of 2,000 dollars, payable to the president, directors and company of said bank, dated at Shawneetown, one Ma/rch 5, 1841, and the other May 5, 1841, each due six months after date. The first note contains a stipulation for the payment of interest at the rate of 8 per cent, per annum, after maturity; the second for the payment of 6 per cent, after maturity. The complaint contains several enactments of the territorial and state governments of Illinois. The first is the act of incorporation of the Bank of Illinois, passed by the territorial legislature, approved December 28, 1816, which was to expire January 1, 1837; the second, an act passed by the state legislature, approved February 12, 1835, continuing the act of incorporation for twenty years from Jcmuary 1, 1837. On the 25th of February, 1843, an act was passed for putting the bank into liquidation, and an act supplemental thereto was approved February 28, 1845. The corporation was required to accept or reject the provisions of the latter act within thirty days; and within that time it was accepted by a resolution of the board of directors. It required the bank to make an assignment of all its effects, real and personal, to Caldwell, Rya/n (the plaintiff,) Hardin and Dunlap. The real estate was to be assigned to all the assignees jointly; the personal estate, rights, credits and debts due to the bank at Shawneetown and the branch at Lawrenceville, were required to be assigned to Caldwell and Ryan, and those due to the branches at Jacksonville, Alton and Pekin, to Hardin and Dunlap. On the 10th of April, 1845, the bank made an assignment, pursuant to the requirements of this act, to Caldwell and Ryan, of the personal effects of the bank at Shawneetown, and delivered to them the notes set forth in the complaint. The assignment is to them and the survivor of them. — 419 — On the 10th of February, 1849, an act was passed, enlarging the time for closing up the affairs of the corporation until January 1,1851. After the passage of this act, and before the commencement of the suit, Caldwell, the co-assignee of Ryan, died. The several acts and the assignment are made exhibits, and referred to by proper averments; and there are other acts of the legislature of Illinois annexed to the complaint, and embodied in the record by agreement, which will be noticed hereafter. The defendant demurred to the complaint. The Circuit Court sustained the demurrer, and gave judgment for the defendant. The grounds of demurrer are as follows: First. That the territorial legislature had no power to charter a bank. We do not think it necessary to decide whether the territorial government had or had not power to charter a bank. A section of the constitution of Illinois is made a part of the record, which is as follows: “ There shall be no other banks or monied institutions in this state but those already provided by law, except a state bank and its branches, which may be established and regulated by the general assembly of the state, as they may think proper.” This was adopted in 1818, and clearly recognized the legal existence of the corporation. Its existence has also been fully recognized by the legislature of that state, by the various enactments embodied in the record, and especially by the act of 1835, extending its charter for twenty years. But the appellee insists that the act of 1835 was inoperative for two reasons: 1. Because it is not averred that the corporation accepted the act; and, 2. Because, if accepted, it violated the section of the constitution above quoted; the extending of the charter being, it is insisted, equivalent to the granting of a new one. The first objection is answered by an estoppel arising; out of the contract. If the corporation could have had a constitutional existence, at the time the notes were executed, the defendant having contracted with it as suchr can not be allowed to deny it. John v. The Farmers' and Mechanics’ Bank, 2 Blackf. 367. — 420 — On the other point. It would be a delicate matter for this Court to declare the acts of a sister state invalid, on the ground of a supposed conflict with the constitution of that state; and especially so, when the legislature of that state has, by repeated enactments, recognized them as valid. It would require a case free from doubt to induce us so to declare. The language of the section, we think, does not justify the conclusion which the appellee draws from it. It declares that there shall be no other banks, &c., but those already provided by law, except a state bank, &c. We have already said this section recognized the then existence of the corporation, and we think such as were then in being were exempted from the prohibition contained in the section, and that they might be continued during the pleasure of the legislature. We do not find that the constitutional question here raised has been passed upon by the Supreme Court of Illinois; but the existence of the bank has been recognized in repeated decisions of that Court. Ryan v. Jones, 15 Ill. 1.—Richeson v. Ryan, id. 13. Our conclusion upon the first, is our answer to the fourth cause of demurrer, which is, that it does not appear by the complaint that the bank accepted the act of extension. The second cause of demurrer applies to one of the notes only, that which stipulates for the payment of 8 per cent, interest after due, which it is said makes the note usurious and void. A general law was in force in Illinois, passed in 1833, limiting the rate of interest to 12 per cent, by special contract; but it can not be regarded as any part of the charter of the bank, nor as conferring any rights on that institution, which must be governed by the law of its existence, and by those acts which in terms apply to it. The act extending the charter, authorizes interest to be taken on loans for six months or under, at the rate of 6 per cent, per annum, and on loans over six months at the rate of 8 per cent, per annum. The record contains an act of the legislature of Illinois, adopting the common law. If, therefore, the contract was usurious, it is void. Fowler v. Throck — 421 — morton, 6 Blackf. 326. We think the agreement of the parties, apparent from the language employed, was, that the loan was for six months; that if paid at maturity no interest was demandable; but if the borrower, by his own default of payment, extended the loan beyond that time, he should pay interest at the rate of 8 per cent, per annum. This brings the stipulation within the provisions of the charter, and renders the contract valid. The third cause of demurrer denies the right of Rycm to maintain this action, on two grounds: 1. Because the power to maintain suits by the assignees, was conferred on Caldwell and Ryan jointly; that Caldwell being dead, no right of action survived to Ryan; and, 2. Because the powers conferred on the assignees expired by limitation on the 1st of January, 1851, which was before this suit was commenced. In considering these objections, the first inquiry is, what rule of construction is to be applied to the statutes enacted for the purpose of winding up the affairs of this corporation? The appellee regards them in the light of acts conferring certain limited powers, like acts of incorporation, which imply a negative of all others; and if this were the true view of them, his conclusions would, perhaps, be unavoidable; but we think it is not. They are remedial statutes, enacted for the purpose, not of conferring powers upon a corporation, but of compelling a monied institur tion which had failed to answer the end of its creation, to pay its debts, and wind up its affairs. The first of the series, passed in 1843, took from the corporation all its banking powers, but contiued its corporate existence for four years, for the purpose above mentioned. It declared the charter repealed at the end of that time. The bank, it seems, did not accept the provisions of that act. The second was passed in 1845. It required the bank to accept it within thirty days; if accepted, an assignment was to be made to certain persons named, of all its effects, real and personal, who were to reduce them to possession, redeem the issues of the bank, by pro rata payments, from time to time, and settle up its affairs. If not accepted, — 422 — suit was to be instituted against the corporation in the name of the state, a receiver was to be appointed who was to perform the same duties prescribed to the assignees. In the performance of these duties, the public had a large interest. They were not essentially different from those committed to administrators of the estates of decedents. The rules of construction applicable to legislation, on subjects in which the public at large are interested, are essentially different from those which apply to private grants to individuals or artificial persons, of powers and privileges conferred to be exercised with special reference to their own advantage. The former are to be expounded liberally and beneficially to effectuate the purposes for which they were enacted; the latter are to be construed strictly as against the grantees. Bradley v. The New-York and New-Haven Railroad Company, 21 Conn. 294. "We shall perceive the frequent application of this rule, as we proceed. With this view of the nature of these acts, we are prepared to examine their details, as far as may be necessary in determining the two questions arising under the third cause of demurrer. 1. Can Ryan, Caldwell being dead, maintain this action? The assignment was made to Caldwell and Ryan, and the survivor of them; and the question is, was it authorized to be so made? The act does not prescribe any particular form of assignment. It provides, in general terms, that all the effects of the bank shall be transferred to four assignees. It then requires the real estate to be conveyed to all the assignees jointly, and that the personal effects of the bank at Shawneetown, and of the branch at Lawrence-ville, shall be assigned to Caldwell and Ryan, and of the other branches to the two other assignees; but does not require that it shall be done jointly, or with or without the right of survivorship. We think the assignment made by the bank, with the right of survivorship, was authorized by the act, there being no requirement upon the corporation to make it otherwise. It is true, it contains a provision for filling vacancies, but that the vacancy occasioned by Caldwell’s death was not filled, did not render the assign — 423 — ment inoperative. Perhaps, had the question arisen solely upon the appointment contained in the act, independent of the assignment, it might have required a different solution. The remaining question in the case is, whether the right to sue had expired by efflux of time, when this action was commenced. The 17th section of the act of February 28, 1845, is as follows: “ The assignees shall have four years from the passage of this act, to make final settlement of the affairs of the bank, without hindrance, otherwise than is provided in this act, any law to the contrary notwithstanding; and the debtors of the said bank shall be allowed the said term of four years for the payment of all debts due to the said bank, by paying the same in four equal annual instalments, with 6 per cent, interest, to be secured to said bank by four notes, with good approved security, payable in one, two, three and four years from the date of the assignment to said assignees, or the reception of the assets by said receiver or receivers, as the case may be, whether the debts be due or not, judgment or otherwise.” The act of February 10,1849, is entitled “ an act for the relief of the assignees of the Bank of Illinois, and to extend the time for the liquidation of the affairs of said bank.” It provides that the time for the liquidation of the affairs of said bank, pursuant to the provisions of an act, &c., (reciting the title of the act of 1845,) be and the same is hereby extended to the first day of Jarma/ry, 1851.” It is evident that the period of four years for making a final settlement of the affairs of the bank, as provided in the above 17th section, was not designed as a limitation of the power of the assignees to sue within that time only. The period of four years is from the passage of the act, February 28, 1845, and it took effect from its passage. The bank had thirty days in which to accept or reject it; and; if accepted, the assignment was to be made within thirty days after acceptance. If rejected, the business was to go into the hands of a receiver. The assignees, or receiver, — 424 — according to the fact, were required to give debtors of the bank four years from the date of the assignment by the former, or the receipt of the assets by the latter, for the payment of their debts, on executing notes with surety, payable in four yearly instalments. The last instalments could not become due until some time after four years from the passage of the act. Consequently, if the four years here mentioned should be regarded as a limitation of the power to sue within that time, a fourth part of the debts due the bank were liable to be lost. Such a construction is too absurd to be tolerated; and yet this act is as explicit as to time, as that of 1849. The latter act extends the time for liquidation, pursuant to the provisions of the act of 1845, to January 1, 1851. This part of the act contains no negative words. Are we authorized to add the words “and not after,” by implication? In The Hartford and New-Haven Railroad Company v. Kennedy, 12 Conn. 499, it was said that where a liberal construction is necessary to carry into effect the object of a remedial statute, although it be introductory of a new law, no negative ought in general to be implied. It is a general rule that in the construction of statutes of this kind, the time in which an act is to be done is not essential, unless made so by the act in express terms. Rex v. Sparrow, 2 Strange 1123; in which case the grounds on which the Court held an act valid, done out of time, although it was under a new statute, was, 1. That the public were interested to have it done; 2. Because the act contained no negative words; and, 3. Because the parties to be benefited by the act had no power to do it themselves; all of which apply with much force to the present case. In reviewing this case, lord Mansfield, in Rex v. Loxdale, 1 Burr. 447, said: There is a known distinction between circumstances which are of the essence of a thing required to be done by act of parliament, and clauses merely directory. The precise time, in many cases, is not of the essence. In Doe v. Flagler, 1 Ind. R. 542, the time for the performance of an act was held essential; also in The Thames Manu — 425 — facturing Company v. Lathrop, 7 Conn. 555; but in those cases it was held essential, upon the same principle upon which it is held not to be essential in cases like the' one under review; that is, because the rights of the public are to be affected by the act. In one case, those to be affected were entitled to have the act done at the time; otherwise they were injured. In the other case, they were entitled to have it done, whether done within the time or not; otherwise they were injured. See, also, as to the construction of remedial statutes, Ketcham v. The New-Albany and Salem Railroad Company, ante, p. 391. There is a view of the case which comprehends both branches of the argument arising under this cause of demurrer. The assignment, independent of the statute, created a common law right, which the creditors of the corporation had a right to have enforced for their benefit, whether by both assignees, or by the survivor of them; and whether in or out of time. In this state, where the distinctions between proceedings at law and in chancery are abolished, the principles of equity would apply, and would authorize Ryan, as a trustee, to sue, whether clothed with the legal title or not. If he could have brought his bill in chancery in the Courts of Illinois to recover a chose in action, by virtue of the assignment, he can of course maintain this suit in the Courts of this state. We do not question the correctness of the doctrine advanced by the appellee, that upon the dissolution of a corporation aggregate, the debts due to it are extinguished, as was said in The State Bank v. The State, 1 Blackf. 267; and for the reason there given, that, when dissolved, they have no existence, and can have no right to or control over anything whatever. They die and leave no representatives. But extinguishment follows only where there is no legal provision to prevent it; hence, it can not apply to this case. The appellee assumes that the corporation ceased to exist on the execution of the assignment. This is by no means clear. The act of 1845, which the bank accepted, did not, like that of 1843, which it refused, contain a provision repealing the charter. A seizure of the — 426 — property of a corporation is a very different thing from a forfeiture and seizure of its franchises. The State Bank v. The State, supra. But admitting that the corporation was extinct, that did not extinguish the debts due to it, as has been said, if provision was made to prevent it; and When assigned they had the same force, in the hands of the assignees, as the rights and credits of deceased persons in the hands of their representatives. The doctrines of reverter and extinguishment arise from necessity. The death of a corporation does not annihilate its property, and there being no heirs, it reverts to the last owner, because it can go no where else. So, when its credits fall from its lifeless hands, they cease for the want of a payee or obligee. The State v. The State Bank, supra. But here a payee has been provided, and the consequence which would otherwise have ensued is averted. C. Baker, for the appellant. J. G. Jones and J. E. Blythe, for the appellee. We are of the opinion that the complaint was sufficient, and that the demurrer to it should have been overruled. Per Curiam. The judgment is reversed with costs. Cause remanded, with instructions to the Circuit Court to permit the defendant to answer. I