Harrison v. Annapolis & Elk Ridge Railroad ( 1879 )

Bowie, J.,

delivered the opinion of the Court.

The Annapolis and Elk Ridge Railroad Company, on the 20th June, 1872, made and executed a deed, to William G-. Harrison and Frederick W. Bruñe, of the City of Baltimore, reciting substantially as follows:

Whereas, the party of the first part, under an Act of the General Assembly of Maryland, passed on the 21st of March, 1837, has constructed, and is now engaged in operating a railroad from the City of Annapolis to the Annapolis Junction, on the Washington Branch of the Baltimore and Ohio Railroad, in this State, etc., and by an Act amending said charter, authorizing the said company to extend its road to the harbor of the City of Annapolis, etc., approved on the 1st of April, 1872, is authorized and empowered to borrow money for the purposes contemplated by said Acts, and to issue bonds or certificates of indebtedness, under its corporate seal, and for the purpose of securing the same, to execute mortgages- or deeds of trust upon all or any of its property, real and personal, together with its franchises ; and, whereas, the directors of said company had authorized by resolution, its first mortgage bonds amounting to $400,000, for the purposes aforesaid to be issued, for the purpose of securing the payment of the principal of said bonds, and the interest thereon accruing after actual issue; in consideration of the premises, the loan of said money, etc., the party of the first part, granted, transferred and conveyed to the party of the second part, all the franchises, and all the real and personal property of every kind and description of said company, upon trust for the purposes therein expressed, and upon the following conditions, covenants and agreements. Some of these conditions and covenants, are those usually contained in mortgages, viz., that the grantors should remain in possession until default made; that they should manage, operate and enjoy the said railroad, and take and use all the rents, income, profits, tolls and issues, and dispose of the same in any manner not inconsistent with the deed.

In case of default in the payment of interest on any of said bonds, for the period of six months, the principal of all the bonds should become immediately due and payable, and it should he lawful for the trustees, etc., to enter into and upon all and singular the railroads, etc., and exercise and enjoy the franchises and interests thereby conveyed, and after payment of expenses, apply the money arising as aforesaid, to the payment of the interest on the bonds outstanding, according to the tenor of the coupons, and in the order in which said coupons shall become due, and after paying all such past due coupons, to apply the same to the satisfaction of the principal of said outstanding bonds, ratably, and without discrimination, etc.

It was further provided by Article fourth of said deed, it should he lawful for said trustees “ to sell and dispose of all and singular the railroad and railroads, and all other the premises, and property, franchises and interests thereby conveyed, at public auction, in the City of New York, or in the City of Baltimore, should said trustees so elect, etc.” The trustees, professing to act under the power contained in the above cited deed, filed their bond in the Circuit Court for Anne Arundel County, sitting in equity, for the sum of $500,000, payable to the State on the 11th April, 1818, with a condition thereunder written as 'prescribed by Article 64, sec. 6, of the Code of Pub. Gen. Laws.

They advertised the property for sale, on the second of July, in the City of Baltimore, as required by the deed, when they were enjoined by a nisi order of said Court, passed upon the petition of the Annapolis & Elk Ridge Railroad Company, the Attorney-General appearing in the case by order of the General Assembly, and the Board of Public Works.

An answer having been filed upon motion to dissolve the interlocutory injunction, the Court below continued the same, so far as it restrained the respondents from selling the property described in the deed in the City of Baltimore, and dissolved it in all other respects, from which decretal order, both the petitioners and respondents appealed. The cross-appeals involve the validity of the deed, as a corporate act, binding the corporation, or the stockholders, and assuming its validity, the legality of the sale proposed to be made in the City of Baltimore by the trustees.

The first question, (including the second, and being vital to all further proceedings in the case,) will properly take precedence in our consideration.

It is alleged by the petitioners, that the board of directors, by which the resolution was adopted authorizing the loan, and the execution of the deed to secure the same, was not a legally constituted board.

It is not necessary to critically examine the facts alleged in the petition, to sustain this conclusionbecause, the case being heard on bill and answer, and this allegation being denied, it is for the time being, out of the question.

Some exception has been taken at the hearing of the cause in this Court, to the form of, and the sufficiency of the denial, hut we think the authorities sustain the respondents and the Court below on this point. Vide 45 Md., 453 ; Drury vs. Conner, 6 H. & J., 289; Waters vs. Creagh, 4 Stew. & P., 411; Hughes vs. Garner, Y. & C., 127 ; Knickerbocker vs. Harris, 1 Paige, 209.

The application for the injunction is made by the Annapolis and Elk Ridge Railroad Company by its solicitors, the Attorney-General appearing as one of them, by order of the General Assembly and the Board of Public Works.

The State does not appear as a stockholder, setting up equities independently of the corporation, and we must “pro hac vice ” consider her as represented by the corporation.

Whatever claims a corporation might have for interference by injunction to protect its rights against an abuse or exercise of corporate powers ultra vires, the corporation as such, when a party to a cause, is bound by the same rules of equity as an individual. The doctrine of estoppel applies to the one as well as to the other. This Court has enforced this principle in numerous instances. State, ex rel. Mayor, &c. of Baltimore vs. Kirkley, et al., 29 Md., 85 ; 40 Md., 395 ; 39 Md, 36.

The deed, and the bonds which it was intended to issue and secure, have been executed with all the legal formalities required by the charter and its amendments; — purporting on their face to be made in pursuance of, and to effect the purposes authorized by the charter as amended; the bonds have been negotiated in open market, to a certain extent, and their proceeds paid to the corporation; ■and for several successive years appropriations have been made by the company, to pay the accruing interest, from the current revenues of the company, or other means.

Unless, therefore, the corporation has been since the year 1872, in the hands of directors and officers who were only “de facto” directors and officers, and not “de jure,” the acts of the directors and managers of 1872, in authorizing the loan, executing the deed, and issuing these-bonds, have been ratified and confirmed by the continuous recognition of, and provision made for them. The corporation as such, cannot be allowed to disavow and repudiate its own acts, to the injury of bona fide holders of these bonds, without notice.

Stockholders are generally concluded by the action of the majority, represented by directors duly elected, acting within their chartered limits; we do not express any opinion upon the rights of the State as a stockholder; she-does not appear in that character before us. Nor -do we wish to be understood as laying any stress upon the effect of the Act of 1816, ch. 331, entitled “An Act to amend the charter of the Drum Point Railroad Company,” etc., “and to extend the time for the completion thereof.”

There is nothing in that Act, as we construe it, which prevents the State from asserting all its rights as a stockholder.

The second point involves the right of the trustees, to-sell the property conveyed to them, under the power contained in the deed, in Baltimore, or elsewhere, than in the-county where the property lies.

It is contended on the part of the petitioners, that the instrument conveying the property and conferring the power of sale, being a mortgage, the trustees could not-legally sell out of the county in which the mortgaged premises lie.

In several of the more recent decisions of this Court, in which the construction of different sections of Art. 64, title Mortgage, of the Code of Public General Laws, was involved, it has been held that the mortgages therein referred to were “technical mortgages,” and the Court has distinguished other instruments, which in some respects were equitable mortgages, from technical mortgages, to avoid the embarrassments and inconveniences which would re-suit from applying all the provisions annexed to technical mortgages to other deeds of a cognate character, deeds of trust, etc. Vide Charles vs. Clagett, 3 Md., 82; 45 Md., 396.

Although the instrument now before us has many of the features of a technical mortgage, yet it contains others which are peculiarly embraced in the class of executory trusts.

The debts to be secured in this case were prospective, and the amount uncertain, held by numerous obligees, whose right to the benefit of the deed, passed by endorsement or delivery of the bonds as negotiable instruments; the forfeiture of the deed depending upon the non-payment of the interest for six months, subject to a right in a majority of the holders of said bonds to instruct the trustees to waive the right to consider the principal due, etc.

After investing the trustees with the power to enter and sell upon certain contingencies, it makes them subject to the order in writing of a majority of the bondholders, whether they shall exercise one or both of these powers, and when, and in the meantime they are to hold and use the property for the benefit of all the bondholders after paying current expenses. They are in terms trustees, acting upon the requisition in writing, of a majority of the bondholders in interest.

If this Court was warranted, in the case of The Bank of Commerce vs. Lanahan, 45 Md., 396, in deciding that the deed in that case was not a technical mortgage within the contemplation of the 5th section of Art. 64, we must by the same process of reasoning arrive at a similar conclusion in the construction of the 14th section, as regards the deed in this case.

It results from these premises, that the order of the Circuit Court of the 23rd of August, 1878, in so far as it dissolved the injunction restraining the trustees from “entering upon or taking possession of any part or all of the real estate or personal property under the deed of trust mentioned in the proceedings, until the further order of the Court in the premises ” he affirmed, and that the said order of the Court below, of the 23rd of August, 1878, continuing the injunction heretofore issued in this cause, restraining the sale of the property in the City of Baltimore, should be reversed, and said injunction dissolved with costs to the respondents.

(Decided 7th February, 1879.)

Order affirmed in part, and reversed in part, injunction dissolved, and cause remanded.