Hastings v. Blue Hill Turnpike Corp. , 26 Mass. 80 ( 1829 )

Wilde J.

delivered the opinion of the Court. The first objection to the plaintiff’s title deeds is, that they are not conformable to the form prescribed by the by-laws of the corporation. To this objection it was answered, and we think satisfactorily, that before the deed was made, under which the plaintiff claims, the by-laws were repealed, and there was no exception as to the form of the deed in the repealing clause.

It was then objected, that the deed was a mere release, and not sufficient by the rules of law to transfer the title. If these shares were real estate, there might be weight in this objection ;¹ but personal estate may be transferred without a deed ; and when a deed or bill of sale becomes necessary, or proper, or is , . , . . , - , ... adopted as the most convenient evidence ot the transfer, it is to be liberally construed, so as to effectuate the intention of the parties, and is not to be governed rigidly by the precise rules applicable to the conveyances of real estate. It is sufficient that it is made clear that it was the intention of the parties to transfer the property. And this we think appears manifestly by the terms of the deed under which the plaintiff claims.²

The next objection is, that the clerk of the corporation, who made the deed, was not duly qualified, not having taken the oath after his last election previous to making the deed, in conformity to one of the by-laws of the corporation. To this objection it was replied, that the act of incorporation did not require the clerk to be sworn ; and that if the corporation for their own security required it, it was only directory, and was not an indispensable qualification ; and if it was, that the same person was clerk the next year previous, and was duly qualified, and that he continued in office under the former election until he was duly qualified under the new. And we are of opinion that this would be the necessary consequence, if we were to decide that the oath required was an indispensable qualification. For though the by-laws provide that the clerk shall be chosen annually, they also provide that he shall continue in office until another shall be chosen and duly qualified.¹ But we think the taking of the oath was not an essential qualification. The bylaw was directory, and made for the benefit and security of the corporation. It was their business to see that it was duly administered, and it ought not to be so construed as to allow them to avail themselves of their own neglect, to set aside the title of a bona fide purchaser. And so are the authorities on both points. 2 Kent’s Comm. 238, [3d ed. 295, note b;] The Queen v. Corp. of Durham, 10 Mod. 147 ; Foot v. Prowse, 1 Str. 625 ; The People v. Runkel, 9 Johns. R. 158.

go also the other ground of defence as to the dividends, on ^ part Qj- glares, under the title of Mary Wales, cannot be maintained. The deed to her, it is true, was prior in date to that under which the plaintiff claims, and was duly acknowledged ; and on the back of the deed it had been certified by the clerk, that it had been duly recorded ; but on the production of the record it appeared that the deed was not recorded. On this point the record is conclusive. The certificate of the clerk is only prima facie evidence. To determine otherwise, would defeat one of the principal objects of the record, for the certificate of the clerk would be no notice to subsequent purchasers. And by all the rules of evidence, the record must be conclusive on this point. [But see Ames v. Phelps, 18 Pick 314.]

Judgment for the plaintiff.

1 But see Revised Stat. c. 59, § 5.

2 See Revised Stat. c. 39, § 10.

1 See M Call v. Byram Manuf. Co. 6 Connect. R. 26; All Saints Church v. Lovett, 1 Hall, (N. York,) 191 ; 2 Kent’s Comm. (3d ed.) 294,295; Revised Stat. c. 38, § 4.