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some particulars declared, and without having in any other respect the capacities incident to a corporation. (a)
(3.) Of corporations as trustees.
A corporation being merely a political institution, it has no other capacities or powers than those which are necessary to carry into effect the purposes for which it was established.
A corporation is incapable of a personal act in its collective capacity. (6) It cannot be considered as a moral agent, and, therefore, it cannot commit a crime, or become the subject of punishment, or take any oath, or appear in person, or be arrested or outlawed. (c) It was formerly understood that a corporation could not be seised of
morial usage, the inhabitants of towns charged by law with the performance of duties are held to be individually liable in their property, though sued by a collective name as a corporation. The same rule applies to parishes and school districts. Gaskill v. Dudley, 6 Met. 546. In the case of Beardsley v. Smith, 16 Conn. 368, it was adjudged, after a thorough discussion, that the individual property of the citizens of the city of Bridgeport, and the citizens individually, were liable, on execution, for the debts of the corporation. It was shown, in that case, to be the immemorial usage, and uniformly supported by judicial decisions throughout New England, that the inhabitants of towns and other municipal communities of corporations and quasi corporations were liable in their persons and property for the debts of the towns or corporations, by taxation or execution; and numerous cases were referred to by the court in confirmation of the doctrine, as in 7th and 14th Mass., 19 Pick., 1 Greenl., 5th, 6th, and 10th Conn., and by analogous cases and practice in 2 Term, 660, 2 Russ. 45, 11 East, 77. See supra, p. 274, n. to S. P. But this personal responsibility does not extend to the members of voluntary associations of ecclesiastical societies, unless so subjected by the provisions of its charter. They are private, and not a municipal or quasi corporation, compelled by law, like towns, cities, and-school districts, to assume duties and contract debts. Jewett v. The Thames Bank, 16 Conn. 52. In Georgia, the county courts are invested with power to incorporate the associations for special purposes, not extending to banking or insurance business, and the members are to be bound for contracts, as in case of partnerships. Hotchkiss, Statute Code of Georgia, 1845, p. 372. But see supra, p. 272 a, as to the regulation of corporations in New York.
(a) Jackson v. Hartwell, 8 Johns. 422. Denton v. Jackson, 2 Johns. Ch. 325. Todd v. Birdsall, 1 Cowen, 260. Grant v. Fancher, 5 Id. 309. North Hempstead v. Hempstead, 2 Wendell, 109. School District in Rumford v. Wood, 13 Mass. 193. Overseers of N. W. v. Overseers of S. W., 3 Serg. & Rawle, 117. Angell & Ames on Corporations, 17, 2d edit. See, also, supra, p. 274. In the case of Purdy v. The People, 4 Hill, 384, 395, one of the senators (Paige, Senator,) held, that towns and counties in New York were not corporations even sub modo, at the time of the adoption of the constitution, nor are they now, in the proper sense of the term. See, also, to that point, Jackson v. Cory, 8 Johns. 385; Hornbeck v. Westbrook, 9 Id. 73. They were made quasi corporations by the Revised Statutes.
(b) i Kyd on Corp. 225.
(c) 1 Ibid. 71, 72. 1 Blacks. Com. 477. From the current of modern decisions there can be no doubt, however, that a corporation, equally with an individual, may gain
lands to the use of another, and that it was incapable of any use or trust, and, consequently, that it could not convey lands by bargain and sale. (d) But the objection that a corporation could not convey by bargain and sale was utterly rejected by the C. B., in the case of Sir Thomas Holland v. Bonis, (e) as a dangerous exception to the capacity to convey; and, at this day, the only reasonable limitation is, that a corporation * cannot be * 280 seised of land in trust, for purposes foreign to its institution. (a) Equity will now compel corporations to execute any lawful trusts which may be reposed in them; and in the case of the Trustees of Phillips' Academy v. King, (b) it was held, that a corporation was capable of taking and holding property as a trustee. Many corporations are made trustees for charitable purposes, and are compelled, in equity, to perform their trusts. (c) 1 Corpora
a freehold by a disseisin committed by its agent, whether authorized by deed or vote. See Angell & Ames on Corporations, 152, 3d edit.
(d) Bro. tit. Feoffments, pl. 10. Bacon on Uses, 57. Gilbert on Uses, by Sugden, 6, 7.
(e) 3 Leon, 175.
(c) Green v. Rutherforth, 1 Vesey, 462, 468, 470, 475. Gilbert on Uses, by Sugden, 7, note. 1 Kyd. on Corp. 72. 2 Johns. Ch. 384, 388. City of Coventry v. AttorneyGeneral, 2 Bro. P. C. 236. Attorney-General v. City of London, 3 Bro. C. C. 171 Dummer v. Corporation of Chippenham, 14 Vesey, 245. See Angell & Ames on Corporations, 3d edit. pp. 124-130, on the powers of a corporation to be seised in trust for the use of another, where the cases are well collected, and the reason of them illustrated. Mr. Preston, in his Treatise on Conveyancing, vol. ii. pp. 247, 254, 257, 263, insists, that the more approved authority and better opinion is, that a corporation cannot stand seised to a use on a conveyance to them, though a corporation may be a cestui que use. In one case, it has been admitted that a corporation might give a use; and, therefore, a bargain and sale in fee by a corporation would be good. But if a corporation can give a use, it can, upon the same principle, equally stand seised to a use; and the rule ought to be consistent and uniform, either that a corporation can give and stand seised to a use, or that they can do neither. The New York statute of May 14th, 1840, ch. 318, with just and politic liberality, authorized any incorporated college, or other literary incorporated institution, to take a grant or conveyance of real or personal estate, to be held in trust. (1.) For an observatory ; (2.) To found and maintain professorships and scholarships ; (3.) To provide and keep in repair a place of burial for the dead;
i Nor can they be relieved from the trust on the ground of inconvenience and the advantages that would result to all parties from a change of trustees, without proof of incapacity or unfaithfulness in the corporation, or failure of the objects of the charity. Harvard College 0. Society for Promoting Theological Education, 3 Gray, 280
tions appear to be deemed competent to perform the duties of trustees, and to be proper and safe depositories of trusts; and, among the almost endless variety of purposes for which corporations are created at the present day, we find them (d) authorized to receive and take by deed or devise, in their corporate capacity, any property, real and personal, in trust, and to assume and execute any trust so created and declared. The Court of Chancery is vested with the same jurisdiction over these corporate trusts which it ordinarily possesses and exercises over other trust estates. The directors of corporations, as trustees, are liable personally for a fraudulent misapplication of funds, and trust moneys may be pursued in the hands of any person receiving them without consideration, or with notice of the trust. One director or trustee may be sued alone for a breach of trust, without bringing the others before the court. Corporations are also created with trust powers of another kind; as for the purpose of loaning money on a deposit of
goods and chattels, by way of pledge or security. (e) It will * 281 * soon become difficult to trace the numerous and compli
cated modifications which corporations are made to assume, and the much greater diversity of objects for which they are created. We are multiplying in this country, to an unparalleled extent, the institution of corporations, and giving them a flexibility and variety of purpose unknown to the Roman or the English law. The study of this title is becoming every year more and more interesting and important.
(4.) Of their capacity to hold lands, and to sue and be sued. 1. To hold lands.
It was incident at common law to every corporation to have a capacity to purchase and alien lands and chattels, unless they were
(4.) For any specific purpose within the authorized objects of their charter. Real and personal estate may also be conveyed to any city or village corporation in trust for education, for the diffusion of knowledge, for the relief of distress, and for ornamental grounds, upon such conditions as the grantor or donor, and the corporation may agree to. It may also be conveyed to commissioners of common schools, and trustees of school districts, for the benefit of common schools therein.
(d) See Farmers' Fire Insurance and Loan Company, Laws of N. Y., April 17th, 1822, ch. 240.
(a) The New York Lombard Association, Laws of N. Y., April 8th, 1824, ch. 187.
: Such trustees cannot secure to themseives advantages not common to the stockholders. Koehler v. Iron Co. 2 Black U. S. 715.
specially restrained by their charters, or by statute. (a) Independent of positive law, all corporations have the absolute jus disponendi of lands and chattels, neither limited as to objects nor circumscribed as to quantity. They may execute a mortgage to secure a debt. This was so understood by the bar and court in the modern case of The Mayor and Commonalty of Colchester v. Lowten ;(6) and this common-law right of disposition continued in England until it was taken away, as to religious corporations, by several restraining statutes, in the reign of Elizabeth. (C) We have not reënacted in New York those disabling acts; but the better opinion, upon the construction of the statute, for the incorporation of religious societies, (d) is, that no religious corporation can sell in fee any real estate without the chancellor's order. The powers given to the trustees of religious societies incorporated under that act are limited to purchase and hold real estate, and then to demise, lease, and improve the same for the use of the congregation. This limitation of the corporate power to sell is confined to religious corporations; * and all others can * 282 buy and sell at pleasure, except so far as they may be specially restricted by their charters or by statute. (a) Corporations have a fee-simple for the purpose of alienation, but they have only a determinable fee for the purposes of enjoyment. On the dissolution of the corporation, the reverter is to the original
(a) Co. Litt. 44 a, 300 b. Sid. 161, note at the end of the case. 10 Co. 30 b. Kyd on Corp. 76, 78, 108, 115. Com. Dig. tit. Franchise, F. 11, 15, 16, 17, 18. Parker C. J., in First Parish in Sutton v. Cole, 3 Pick. 239.
(b) i Ves. & Bea. 226, 237, 240, 244; and it was so adjudged in the case of Barry v. The Merchants’ Exchange Company, 1 Sanf. Ch. 250.
(c) By the statute of 4 and 5 Wm. IV. c. 76, all lay civil corporations in England are restrained from selling or mortgaging any real estate, except under a government license, in the mode prescribed.
(d) Laws of New York, sess. 36, ch. 60, sec. 11. This Act has not been either revised or repealed. See N. Y. Revised Statutes, vol. iii. p. 298.
(a) Corporations holding for charitable purposes, says Lord Eldon, 1 Ves. & Bea. 246, can alienate at law, but the alienee will be a trustee.
· This doctrine is controverted, and the cases, ancient and modern, analyzed at great length in Grant on Corporations, pp. 127–139. The learned author endeavors to show that, at common law, corporations are restrained in their right to alienate lands as well as in all their
See the provisions of the N. Y. R. S. as to the right of corporations to hold lands. 1 R. S. p. 599, sec. 1.
• The People o. Mauran, 5 Denio, 389. Nicoll v. N. Y. & E. R. R. 2 Kernan, 121.
grantor or his heirs ; but the grantor will be excluded by the alienation in fee, and in that way the corporation may defeat the possibility of a reverter. (6)
In England, corporations are rendered incapable of purchasing lands without the king's license; and this restriction extends equally to ecclesiastical and lay corporations, and is founded upon a succession of statutes from Magna Charta, 9 Hen. III. to 9 Geo. II., which took away entirely the capacity which was vested in corporations by the common law. These statutes are known by the name of the statutes of mortmain, and they applied only to real property; and were introduced during the establishment and grandeur of the Roman church, to check the ecclesiastics from absorbing in perpetuity, in hands that never die, all the lands of the kingdom, and thereby withdrawing them from public and feudal charges. (C) The earlier statutes of mortmain were originally levelled at the religious houses; but the statute of 15 R. II., ch. 5, declared that civil or lay corporations were equally within the mischief and within the prohibition; and this statute made lands conveyed to any third person, for the use of a corporation, liable to forfeiture, in like manner as if conveyed directly in mortmain. (d) We have not in this country reënacted the statutes of
(6) Preston on Estates, vol. ii. p. 50.
(c) Lord Ch. Brougham observed, that the object of the Mortmain Act was to prevent land from being placed extra commercium upon the feudal principle of protecting the lords against having tenants who never died, but that there was no intention of preventing by will the investment of moneys in improvements upon land already in mortmain. Giblett v. Hobson, 3 My. & K. 517.
(d) Co. Litt. 2 b. 2 Blacks. Com. 268,274, and i Blacks. Com. 479. The Mortmain Acts apply to corporations exclusively; and trusts made by feoffment, grant, or devise to unincorporated bodies, for charitable uses and purposes, not deemed superstitious, have not been held to be invalid, under the Mortmain Act of 23 Hen. VIII. ch. 10, and that of 1 Ed. VI. ch. 14. Porter's case, 1 Co. 24 a. Martidale v. Martin, Cro. E. 288. Case (5 ED.VI.) cited by the assistant vice-chancellor, in Wright v. Trustees of Meth. Epis. Church, 1 Hoff. Ch. 248. Adams and Lambert's case, 4 Co. 104 b. Sir F. Moore, 648. The prohibition to alienate a mortmain was qualified. The right to seize the lands as a forfeiture belonged to the mesne lords and the king; and if they remitted the forfeiture, the alienation was good. The interests of the heir were not considered ; he was bound by the alienation. Wilmot’s Opinions, p. 9. Attorney-General v. Flood, Hayes's Irish Exch. 611. The assistant vice-chancellor in Wright v. M. E. Church, in 1 Hoff. Ch. 254.
In 1843, an attempt was made in the English House of Commons to repeal the statutes of mortmain, and allow of the establishment of schools, hospitals, churches and
3 See Bingham v. Weiderwax, 1 Comst. 509.