Chicago & South Side Rapid Transit R. R. Co. v. Northern Trust Co. , 90 Ill. App. 460 ( 1900 )

Mr. Justice Freeman

delivered the -opinion of the court.

The application for the writ of error in this case, though in the names of the Chicago and South Side Rapid Transit Railroad Company, the mortgagor of the property the foreclosure of which it is sought to set aside, and the Title Guarantee and Trust Company, was made and is prosecuted by certain stockholders of the railroad company, for the use of themselves and all other stockholders similarly situated. Having made demand that said companies themselves sue out such writ on or before a certain date, and the demand not having been complied with, said stockholders come into this court with their praecipe for a writ of error in the names of said companies—the nominal plaintiffs in error—filing also a petition setting out grounds upon which the application for the writ of error is based. The court, without passing upon any of the questions involved, directed upon the prima fade showing, that the writ issue, intimating that objections thereto could be brought up on motion to dismiss, when the record and. parties would be before us.

Motions to dismiss the writ at the costs of the petitioning stockholders were made by the Northern Trust Company, trustee under the first mortgage, the Illinois Trust and Savings bank, trustee under the second mortgage, defendants in error, and by the South Side Elevated Bail-road Company, present holder of the property, and by Leslie Carter and George E. Adams, who purchased it at the foreclosure sale; also by the Title Guarantee and Trust Company and by the Chicago and South Side Bapid Transit Bailroad Company itself, the nominal plaintiffs in error. The grounds of said motions are, first, that the issuance of said writ of error was in no way authorized by said nominal plaintiffs in error, and that without such authority the petitioners as stockholders of said Chicago and South Side Bapid Transit Bailroad Company had no right to sue out the writ; second, that none of the stockholders of said railroad company were prejudiced by the foreclosure proceedings, and none "would be benefited by reversal of the decree of foreclosure; and third, that even if entitled to the writ upon a proper showing, no such showing has been made.

In support of - the objections to the use of the process of this court in the manner proposed by the petitioning stockholders, affidavits have been filed tending to show that' the said railroad company was at and before the time of the foreclosure proceedings, and has been ever since, hopelessly insolvent, and would be so insolvent even if the property, rights and franchises formerly belonging to said railroad company and sold under the foreclosure, were now restored to it, and the indebtedness paid by said sale revived; and that the issuance of the writ of error was never in anyway authorized by said nominal plaintiffs in error, the Chicago and South Side Eapid Transit Eailroad Company and the Title Guarantee and Trust Company, by their boards of directors or in any other way. The affidavit filed by Leslie Carter, president of the South Side Elevated Eailroad Company, states that the said railroad company was organized in 1897, and soon after acquired from the purchasers at the foreclosure sale the propert}r there sold, and has since expended many thousands of dollars ip the improvement and betterment of the railroad system so acquired; that it has also acquired new and additional rights and privileges of very great value; that said company’s capital stock is $10,323,800, divided into 103,238 shares of stock of the par value of $100 each, which has, since the company’s organization in 1897, been bought and sold in open market, and has passed into the hands of numerous persons who never had any interest whatsoever in the old Eapid Transit Company; that said new elevated company has issued and sold $750,000 of mortgage bonds now outstanding and owned by many different persons, which are secured by mortgage upon substantially all the assets of said elevated company; that the market value of the stock of the latter company does not exceed eighty per cent of its par value, making the maximum selling price $8,259,040; whereas the mortgage debt of the old Chicago and South Side Eapid Transit Company would, if the foreclosure sale were set aside, exceed $12,500,000. It is further averred that the said foreclosure proceedings were widely known and discussed at the time they were had; that the petitioning stockholders herein were informed of and conversant with them, and never sought entrance into that suit or made objection thereto.

A motion was made on behalf of the petitioners to strike certain of the affidavits from the files upon the ground that the court will not inquire into matters dehors the record by affidavit. But as said affidavits are presented in support of the motion to dismiss the writ of error, as tending to show that the petitioning stockholders have no standing to prosecute such writ, matters tending to sustain such contention which do not appear of record are properly presented by affidavit. Moreover, the petitioners have caused the South Side Elevated Railroad Company to be summoned herein as terre-tenant in possession of the property in dispute, and have also brought in Messrs. Adams and Carter by scire facias, none of whom were parties to the original foreclosure proceedings. It would seem to be proper under such circumstances, for them to be allowed to present any material facts which may tend to support their motion to dismiss.

Counsel for petitioners state that they rely with confidence upon the case of Anderson v. Steger, 173 Ill. 112, as authority for bringing this writ. In that case it is held that wffiere a plaintiff in error could have sued out a writ of error at common law upon a like interest, the motion to dismiss such writ should be denied; that at common law the person entitled to a writ of error must be a party or privy to the record, or be one who is injured by the judgment or will be benefited by its reversal or competent to release error; and by privies to the record are said to be meant “heirs, executors, administrators, terre-tenants, or those having an interest in remainder or reversion, or one who is made a party by the law.” It is claimed in behalf of the petitioners, that as “ a stockholder is the cestxiis que trustent of his corporation and the ultimate beneficiary of its assets,” he is necessarity “ injured by a decree wrongfully taking from his corporation every dollar of its assets,” and is hence entitled to the writ.

It does not, however, necessarily follow that a stockholder is injured by a decree taking the property of his corporation in payment of its debts, in such sense as to entitle him to a writ of error. If the reversal of the decree would restore to him personally the property in dispute he might be so benefited, and the Anderson case would then be in point. But even if. the result of a reversal in this case would be to restore the property to the corporation, the benefit to the stockholder would be indirect, and in case of an insolvent corporation, more likely to inure to the benefit of creditors than to himself. If prejudiced by the decree in controversy, the stockholders are indirectly so prejudiced. But such indirect prejudice does not of itself authorize the suing out of a writ of error. McIntyre v. Sholty et al., 139 Ill. 171 (178).

It is urged that a bill of review is in the nature of a writ of error, and the case of Farwell v. Great Western Telegraph Company, 161 Ill. 522, is cited as similar in many respects to the case before us. In that case, Farwell, a stockholder, was allowed to file a bill in the nature of a bill of review to impeach a decree against the corporation, to which decree he was not nominally a party. It is true a bill of review, pure and simple, is in the nature of a writ of error. Allerton v. Hopkins, 160 Ill. 448 (452). But such a bill is to be distinguished from a bill only in the nature of a bill of review. There is no dispute over the proposition that a stockholder may, as in the Farwell case, seek relief in equity in his own name by a bill which is in the nature of a bill of review where the corporation wrongfully refuses or neglects to protect its rights, where its officers are acting in bad faith, fraudulently, or beyond the authority conferred by the charter. Farwell case, supra, p. 604; Thompson on Corporations, Sec. 4, 483; Wheeler v. Pullman Iron & Steel Co., 143 Ill. 197 (207); Hawes v. City of Oakland, 104 U. S. 450.

But in the present case we have not a bill in equity filed by the petitioning stockholders in their own names in a court of original jurisdiction, but a writ of error sued out in' the names of two corporations for the use of the petitioners who are stockholders in one of them, and as appears from affidavits not disputed, without consent of, or authority from the corporations named as plaintiffs in error. Conditions justifying a bill in the nature of a bill of review may not sustain a writ of error. In Anderson v. Steger, above referred to (173 Ill., on p. 117) it is said that in chancery causes to which the right to a writ of error has been extended by our statute without restrictions, it should be given the same scope as at common law, and not subjected to any limitation or restriction as to parties not imposed' by the common law. But as before stated, at common law, the petitioners not being parties or privies to the record or directly injured by the decree, or in position to be benefited by its revers U, would not be entitled to the writ in their own names. We know of no reason or authority which would allow them to use the names of the nominal plaintiffs in error herein without consent and against the will of the latter, to obtain a writ of error to which they are not entitled in their own behalf. To so hold would be to subject the nominal plaintiffs in error, at the option and for the benefit of outside parties, to expense, and perhaps judgment for costs, at least, without power to protect themselves from what may be needless and useless procedure. In Ex parte Cutting, 94 U. S. 14, petitioning stockholders were denied leave to appeal from a foreclosure decree against the Pacific railroad. It is there said:

“ Only parties, or those who represent them, can appeal. The stockholders do not represent the corporation, but for some purposes the corporation, represents them.”

It is said, however, by counsel for petitioners, that “ there is a wide difference between an appeal and a writ of error.” It is true that a writ of error was, at common law, a writ of right, which, by the statute, has been extended to chancery causes, while the right of appeal is purely statutory. But the restrictions as to parties are still those imposed by the common law. Anderson v. Steger, supra.

“ Ordinarily a stockholder has no control over a suit against a corporation by a third party, nor is such stockholder, as a general rule, the representative of the corporation. The corporation is represented by its officers, who, in legal contemplation, are all-sufficient for the protection of the interests of that body.” (Farwell v. G, W, T. Co., supra, on p. 602.)

The exceptions to that rule do not, so far as we are advised, extend to allowing a stockholder to sue out a writ of error in the name of the corporation.

Since the motions herein were taken and the cause submitted upon briefs, a receiver of the Chicago and South Side Rapid Transit Railroad Company has been appointed by the Circuit Court, who has moved that he be permitted as such receiver to withdraw the motion heretofore made by said company to dismiss the writ of error herein, and for leave to assign the same errors as have been assigned by the petitioning stockholder. This is done, it is said, to “ permit the examination and decision of the case upon the merits, without embarrassing the court with the jurisdictional Question.”

Whatever may be the effect of the allowance of this motion, so far as the railroad is concerned, there still remain the objection of the Title Guarantee and Trust Company to the use of its name as plaintiff in error, without its consent, and the motion of the South Side Elevated Railroad Company for dismissal of the writ upon the ground of laches.

In view, however, of the interposition of the receiver in whom the right of action as representative of the corporation now vests, and by whom the writ of error may be rightfully prosecuted, we deem it a proper exercise of discretion to allow his motion, and to consider the alleged errors in the record upon the merits.

It is contended by counsel for the receiver and petitioning stockholders that the mortgages of October 1, 1889, and January 2,1893; being the first and second mortgages made to secure the two issues of bonds of the Chicago and South Side Rapid Transit Railroad Company are void, in so far as they attempted to convey the right to maintain and operate the railroad under the city ordinances.

The 16th section of the ordinance of March 26, 1888, granting said mortgagor company the right to maintain and operate its elevated railroad over certain streets and alleys in the city of Chicago, contains the following provision:

“It is further provided that the above consent shall never in any way or manner authorize any other railroad company, or street or horse or dummy railroad company, to use the franchise herein above granted to said Chicago and South Side Rapid Transit Railroad Company.”

Subsequent amendatory ordinances granting said company privileges over additional streets and alleys are subject to the same limitations. Such consent is a mere license. C. C. R. W. Co. v. The People, 73 Ill. 541, 547.

Counsel for plaintiff in error contend the meaning of this provision is, that the Rapid Transit Railroad Company shall never authorize any other railroad company to use this consent. It is clear, however, the limitation is for the benefit of the city. The latter has the power to grant or Avithhold its consent to the use of its streets and alleys by a railroad company, and “ in granting such consent the common council may impose such conditions aá, in its opinion, the public benefit may require.” Byrne v. Chicago General Ry. Co., 169 Ill. 75 (83). But in the case before us no condition is imposed. The language is a mere limitation of the consent to the railway, company to Avhich it is given, not a limitation upon its powers. It is a limitation of a character such as might perhaps exist without the clause referred to, where the consent is given definitely to a person or corporation specifically named. We do not, therefore, regard the case of Tudor v. Rapid Transit Railroad Co., 154 Ill. 129, as being in point. What the purpose of the city council was in this proviso, is mere matter of conjecture in Avhich it is not profitable to indulge. The argument of counsel for the plaintiff in error is based upon the assumption that the clause in question is a prohibition against the sale or disposal of the city’s grant. It is argued that the trust deeds which conveyed the railroad’s right to use the grant to the trustees are void, because in that respect violating the prohibition of the ordinance. But the assumption is unwarranted by anything in the ordinance. The argument is based upon a false premise. The proviso in question prohibits nothing. It merely limits that particular consent to use the franchise to that specific company. The railroad company had power under the statute (Chap. 114, Sec. 20 par. 10) to mortgage its corporate property and franchises, whether more or less valuable. The conveyance of its own right to use the franchise may have given no right thereto to the purchaser as against the city. It did, however, as against the mortgagor. The conveyance was good as between the parties. The city could exercise its discretion about giving its consent to the purchaser to use the franchise. As to this the purchasers at the foreclosure sale took the chances. But the sale of even a worthless thing, all parties knowing the facts, and taking the risks as to its thereafter becoming valuable, is not invalid. The refusal of the city to authorize the purchaser tó use the franchise might affect its value perhaps, but would not avoid the sale as between the parties. The construction of an ordinance can be. determined, if necessary, in a direct proceeding. Chicago Gen. Ry. Co. v. City Ry. Co., 186 Ill. 219, 223.

In Webster v ¡Nichols, 104 Ill. 160, it is said a clause in a lease “ providing that the premises shall not be assigned without the written assent of the lessors, is clearly for the benefit of the lessors only. It does not render the assignment when otherwise made, absolutely void, but voidable only, at the. option of the lessors or their representatives.” We agree with counsel for defendants in error that the principle is the same in the case before us so far as applicable; although here the ordinance does not attempt to provide that the franchise or the railroad property shall not be assigned.

It is further contended that the bonds secured by the first mortgage as well as the mortgage itself are void. The basis of this contention is that the construction company, to which the bonds and stock were issued originally in payment for the road, received $7,500,000 in stock and the same amount in bonds of the company, while the cost of building and equipping the entire road was only $7,728,-102.94, including the second section, not embraced in the original contract. It is said that this contract -was so unfair as to be void, making the indebtedness fictitious.

The mere fact that stock and bonds, nominally of much greater par value than the cost of the railroad in actual money were givenin payment therefor, is not of itself conclusive evidence of excessive, much less fictitious, consideration. The contractor agreeing to build a road, and receiving in payment therefor stocks and bonds upon which he must realize in order to get the money, without which the road can not be built, is not likely to take such risks without a margin sufficiently large to make it worth his while to proceed with the undertaking. Such a contract, if made and carried out in good faith, is not void, nor is the indebtedness so created fictitious. In Peoria & Springfield R. R. v. Thompson, 103 Ill. 187, it is said that “ although a contract entered into by the agents or officers of a private corporation is ultra vires, and therefore not binding on the company so long as it remains executory, yet if the company in such case knowingly permits the other contracting party, without objection, to go on and perform the contract on his part, and thereby obtains and appropriates money, property or labor in furtherance of some legitimate corporate purpose, it will be estopped from denying its liability on such contract.” Here the company received a large part of the road and its equipment under the contract, which was moreover entered into with the full knowledge and consent of all parties interested in the corporation at the time.

It is urged that the bonds are to be deemed issued without consideration; that as the entire issues of stock of the par value of $7,500,000 and bonds for a like amount were-turned over to the construction company in payment for property costing less than half that sum, both stock and bonds can not be treated as having been paid for; that until the construction company had paid its subscription for the stock it could hold no valid obligation against the company, and hence the bonds must be deemed invalid, as creating a fictitious increase of indebtedness, in violation of the constitution.

Whether or not the stock has been fully paid, we need not now inquire. Our present inquiry is limited to the valiclity of the bonds. The court below found, and the finding is sustained by the evidence, and is not, so far as we can discover, disputed by anything in the record, that the bonds in question had passed into the hands of a large number of persons who are bona fide holders. But it is claimed by counsel for plaintiff in error that in view of the constitutional and statutory provision “ that the fictitious indebtedness of a corporation shall be void,” it is too well settled for argument that the bonds are void in the hands of innocent purchasers.

The provision of the constitution referred to is that “no railroad corporation shall issue any stock or bonds except for money, labor or property actually received and applied to the purposes for which such corporation was created, and all stocks, dividends and other fictitious increase of the capital stock or indebtedness of any such corporation shall be void.” In the case of Peoria & Springfield R. R. Co. v. Thompson, above referred to, that provision of the Constitution is considered at length, and it is said (p. 202):

“ In short, we are of opinion that when one for a present consideration in good faith purchases bonds or stocks in the regular course of business from a railroad company, and such consideration is accepted by the proper officer of the company, and nothing appears to show that it is to be used or applied to other than legitimate corporate purposes, such bonds or stocks, when thus issued, will be regarded as ha.v-e ing been issued for money, labor or property (as the case may be) ‘ actually received and applied ’ within the meaning of the constitutional provision.in question.”

It follows that bonds so purchased, like those in controversy, do not represent fictitious indebtedness. In the case last referred to it is expressly held (pp. 205-6) that any equities the company may have against the contractor for breach of the construction contract, can not be interposed so as to defeat the title of the present holders of the bonds. In that cáse, as in the case at bar, the bonds upon their face were payable to the holders.

Objection is made, the trust deed provides that in case of default in interest, the bonds shall become due and payable at the option of the trustee, a condition over which the holders have no control and which might never arise, and hence it is said the negotiability is destroyed, as negotiable instruments must state some time at which they will unconditionally become due. The objection is without force. The bonds by their terms become due respectively October 1, 1999, and January 1, 1933. The option, of the trustee is merely to declare them due before that time in case of default in payment of interest.

It is said that the cross-bill of the Illinois Trust and Savings Bank, trustee, to foreclose under the second mortgage, was prematurely filed, and the entire decree is thereby vitiated.

The second mortgage provided that the bonds thereby secured might be declared due in case of default for six months after demand in payment of interest, and the mortgage be foreclosed in case of continuance of default for six months. Default was made in the payment of the interest due July 1, 1895, on the second mortgage bonds. The cross-bill to foreclose was filed October 5, 1895. The day previous the board of directors of the mortgagor at the request of the trustee, adopted a resolution waiving the six months condition, authorizing immediate foreclosure and conferring power on the trustee to proceed accordingly.

It is contended that this waiver was a fraud upon the stockholders, and evidence of collusion between the stockholders and directors. It appears, however, that the first mortgage was about to be foreclosed, and that it was only a question of a short time when the second would be also, whether such waiver was made or not. Nothing, so far as appears, was to be gained by delaying the filing of the cross-bill for three months longer, although additional expense might thereby be caused. In such circumstances the waiver can not, of itself, be regarded as evidence of collusive fraud between the directors and bondholders. It is said the corporation had no power to authorize the trustee to declare the principal due, inasmuch as the trustee himself, by the terms of the trust deed, can only so declare upon a request in writing from a quarter of the bondholders. But the bondhoklers make no objection, and it was undoubtedly within the power of the company to pay its debt before.it was due if the creditors consented. An insolvent corporation may dispose of its property in good faith for the purpose of paying or securing corporate debts. Illinois Steel Co. v. O’Donnell, 156 Ill. 624. The waiver was the act of the corporation, and it is too late to question for the first time in this court the right of the trustee to avail himself thereof, when no such objection was made in the court below. Hazel v. Bondy, 173 Ill. 302.

It is further contended that there was error in decreeing the sale of the land held by the Title Guarantee & Trust Company, which was not covered by either of the mortgages.

It appears from the undisputed evidence that this land was acquired in the settlement made with the construction company, which had purchased it with proceeds of the bonds received under its contract with the railroad company. By the decree the court ‘‘finds and holds, the defendant railroad company assenting thereto, that said real estate had been and is subject to an equitable lien in favor of the holders of both classes of said bonds, and should be sold to raise moneys for the payment thereof.” In First Nat. Bank v. Illinois Steel Company, 174 Ill. 140-154, the court quotes with approval from Armstrong v. Cooper, 11 Ill. 540, as follows: “A decree made by consent can not be appealed from, nor can error properly be assigned upon it. Even a rehearing can not be allowed in the suit, nor can the decree be set aside by a bill of review; ” and it is said, “ these orders being made at the request of appellant, and by consent, it can not question their validity.” This would seem to be conclusive of the present contention, even if it should be conceded that without such consent it would have been erroneous to find under the facts, that the real estate in question was subject to such equitable lien in favor of the bondholders.

In Troutman v. Schaeffer, 31 Ill. 82, referred to by counsel for plaintiff in error, the decree by its terms, owing apparently to a clerical mistake, foreclosed land in the wrong quarter section, which, of course, was fatal. But in the case at bar it was agreed that the real estate, though not specifically'mentioned in the mortgage, was subject to ics equitable lien and should be sold to repay the bonds thereby secured.

It is insisted, finally, that the decree provided too short a time in which to pay so large a sum of money as 811,400,707. In Taylor v. Billenburg, 168 Ill. 235, it is said that what is a reasonable time in which- to redeem from a foreclosure sale “ rests in the sound discretion of the court in view of all the circumstances of the case.” In the case at bar the decree directed that the mortgagor pay the amount found due upon the mortgages within ten days, and that in default of such payment at the end of thar. time the master proceed to sell after giving three weeks’ notice. The sale of the railroad property rights, privileges and franchises, was to be absolute upon its confirmation, upon the execution and delivery of the master’s deed. The sale of the real estate was to take effect upon the expiration of fifteen months for redemption. A reasonable time for payment of the amount due under such decree has been variously estimated. In Chicago, Danville, etc., R. R. Co. v. Fosdick, 106 U. S. 70, the opinion by Mr. Justice Matthews quotes from what is spoken of as “an authoritative rule of practice in such cases,” prescribed in Howell v. R. R. Co., 94 U. S. 466, in which Mr. Justice Miller says that the decree to which the complainant is entitled “ will ascertain the sum so due, and give the company a reasonable time to pay it, say ninety days or six months, or until the next term of the court, in the discretion of the court.” It is further said by Mr. Justice Matthews that according to English chancery practice the time usually allowed by the decree to pay the mortgage debt was six months. That was not regarded as an absolutely fixed period, but might be varied so as to be reasonable according to the discretion of the court and the particular circumstances of the case; and where, according to the English practice, a sale instead of foreclosure was ordered, the form of decree was the same, directing sale within the usual time of six months “ or within a shorter period, or even immediately, if by consent, where it was considered to be for the benefit of all parties.” All that is indispensable is that the mortgagor be required to pay within a reasonable time, to be fixed by the court. By the supplemental abstract herein, it appears that the sale was made September 16, 1896, two months and seventeen days after the entry of the decree. September 29, 1896, the sale was ordered confirmed, unless Avithin ninety days payment should be made. It was confirmed December 29, 1896. It thus appears that the mortgagor Avas actually given six months in Avhich to pay or obtain a higher bid for the property, the full limit of what, according to the authorities above referred to, is deemed a reasonable time. Mo application was made for further time.

We have not referred in this discussion to all the points raised and cases cited by counsel in the various printed motions and briefs—some fourteen in number—to Avhich our attention has been invited. We have, nevertheless, considered thém with the care which the importance of the case seems to demand. We find in the record no evidence to warrant the conclusion that the foreclosure proceedings have been fraudulently begun or conducted. So far as appears there was no concealment from the stockholders, and full publicity was given to the whole procedure.

The construction contract and the first mortgage trust deed were concurred in by all the stockholders. The second trust deed was likeAvise duly authorized. Meither the company nor the stockholders can now be heard to complain of their own acts. It does not appear that subsequent purchasers of the stock were in any Avay misled. They Avere at liberty to buy or not, in the open market, and form their own estimate of value. The decree of sale has been acquiesced in for more than íavo. years, during which the purchaser has expended large amounts upon the property and many persons have become interested in it as stockholders in the purchasing corporation, and as holders of its bonds.

But aside from the laches in suing out the writ, we have been unable to find substantial error in the record, and the decree of the Circuit Court will therefore be affirmed.