Saltmarsh v. Spaulding

• Decision Date: 19 June 1888
• Citation: 147 Mass. 224,17 N.E. 316
• Parties: SALTMARSH et al. v. SPAULDING et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 224

17 N.E. 316

SALTMARSH et al. v. SPAULDING et al.

Supreme Judicial Court of Massachusetts, Essex.

June 19, 1888

COUNSEL

H.N. Merrill, J. Otis Wardwell, and J.C. Caverly for demandants.

E.T Burley and C.U. Bell, for tenants.

OPINION

DEVENS J.

The demandants rely for their title upon a special attachment of the land demanded, by a creditor of the American Iron Glass-Pipe & Plate Company, and a sale thereof on execution issuing upon the judgment subsequently obtained. The title of the tenants rests upon a mortgage lawfully made, as it is contended, by the corporation to the City Savings Bank of Haverhill, and a foreclosure sale by authority of a power therein contained, both the mortgage and the foreclosure sale being made previously to the attachment relied on by the demandants. The tenants also rely upon a purchase made by them of the premises upon a sale under an order of court issued on a process to enforce a mechanic's lien. In the view we take of the case, the validity of the title thus acquired it will not be necessary to consider. It is the contention of the demandant that the mortgage made to the savings bank was without lawful authority, and void by virtue of Pub.St. c. 106, § 23, which prescribes that no conveyance or mortgage of the real estate of a corporation, or "lease thereof for more than one year, shall be made unless authorized by a vote of the stockholders at a meeting called for the purpose," no such vote having been passed, authorizing the mortgage in question. An examination of the section shows that it refers only to corporations subject to the provisions of the chapter, where it is found, and that it does not refer to foreign corporations. While the general principle undoubtedly is that the law of the place where real property is situate exclusively governs as to the title of parties therein, the disposition and mode of transfer thereof and the solemnities attending such transfer, and while we do not doubt that it would be possible to provide by legislation that foreign corporations permitted to own real property situate in this state should only transfer the same by authority of the stockholders, no such provision has been made. Attorney General v. Mining Co., 99 Mass. 148. While they must comply in their forms of conveyance with those here required, they derive their authority to make them from the rules imposed upon them by the states where they are created. The demandant further urges that even if the statute of Massachusetts does not apply to foreign corporations, there was no power vested in the board of directors by the laws of New Hampshire which authorized them to make a deed of real estate. The by-laws of the corporation vested the management and control of its business, and the authority to appoint all necessary agents or attorneys therefor, in the board. The mortgage deed was made in the name of the corporation, and under its seal, by the president and treasurer of the corporation, by virtue of an express vote of the directors giving them authority. Gen.Laws N.H. c. 147, § 4, cl. 3, which are made a part of the case, empowered the corporation to adopt by-laws, "to regulate the number of officers, their powers and duties, the mode of choosing them, and their tenure of office, and any others necessary and suitable to promote the objects of the corporation, and to alter and amend the same." The corporation was one authorized to make contracts necessary and proper for its business, and to purchase, hold, and convey real and personal estate necessary for the transaction of its business. Gen.Laws N.H. c. 147, §§ 5, 6. The directors, by virtue of the powers implied from their position, had the general control and management of the business, which of necessity involved the raising of money to carry it on. It is found that the money raised by means of the mortgage was expended on the real estate mortgaged. In the absence of any prohibitory statute, a sufficient authority is shown on the part of the directors to mortgage the property, and in doing so they could adopt the form ordinarily in use where the real estate was situated. Burrill v. Bank, 2 Metc. 166; Sargent v. Webster, 13 Metc. 497; Hendee v. Pinkerton, 14 Allen, 387; Despatch Line v. Manufacturing Co., 12 N.H. 205. The provision that a corporation authorized to hold real estate may convey the same by an agent duly appointed for that purpose (Gen.Laws N.H. c. 135, § 2) does not exclude other modes of conveyance; as for instance, in the name and under the seal of the corporation itself, and by the president and treasurer. Especially would this be so where the latter form was that used where...