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and our American law more numerous examples, of persons and collective bodies of men endowed with a corporate capacity, in 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 person
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 Pickering, 1 Greenleaf, 5th, 6th, and 10th Conn. Reports, and by analogous cases and practice in 2 Terin, 660, 2 Russ. 45. 10. East, 390, 11 Id. 77. See supra, p. 274, n. to S. P. But this personal responsibility does not extend to the members of voluntary association of ecclesiastical societies, unless so subjected by the provisions of its charter. They are a 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. R. 511. In Georgia the county courts are invested with power to incorporate associations for special purposes, not extending to banking or insurance business, and tho members are to be bound for contracts as in case of partnerships. Hotchkiss, Statute Code of Georgia, 1846, p. 372. But see supra, p. 272, a. as to the regulation of corporations in New-York.
Jackson v. Hartwell, 8 Johns. Rep. 330. 18 Id. 422. Denton v. Jackson, 2 Johns. Ch. Rep. 325. Todd v. Birdsall, 1 Cowen's Rep. 260. Grant v. Fancher, 5 Ibid. 309. North Hempstead v. Hempstead, 2 Wendell's Rep. 109. School District in Rumford v. Wood, 13 Mass. Rep. 193. Over. seers of N. W. v. Overseers of S. W., 3 Serg. g Rawle, 117. Angell f Ames on Corporations, 17, 2d ed. See, also, supra, p. 274. In the case of Purdy v. The People, 4 Hill's Rep. 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. Covy, 8 Johns. Rep. 385. Hornbeck v. Westbrook, 9 Id. 73. They were made quasi corporations by the Revised statutes.
al act in its collective capacity. It cannot be considered as a moral agent, and, therefore, it cannot commit a crime, or become the subject of punishment, or take an oath, or appear in person, or be arrested or outlawed. It was formerly understood that a corporation could not be seised of 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.c 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,d as a dangerous exception to the capacity to convey; and at this day the only reasonable limitation is, that a corporation *cannot be seised of land in trust, for purposes #280 foreign to its institution.c Equity will now compel corporations to execute any lawful trust which may be repased in them; and, in the case of the Trustees of Philips' Academy v. King,f 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. Corporations appear to be deemed compe
•1 Kyd on Corp. 225.
b1 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 a freehold by a disseisin committed by its agent, whether authorized by deed or vote. Angell f Ames on Corporations, 152, 3d edit.
• Bro. tit. Uses, pl. 10. Bacon on Uses, 57. Gilbert on Uses, by, Sug. den, 6, 7.
d 3 Leon. Rep. 175.
& Green v. Rutherforth, 1 Ves. 462. 468. 470. 475. Gilbert on Uses, by Sugden, 7. note. 1 Kyd on Corp. 72. 2 Johns. Ch. Rep. 384. 389. City of Coventry v. Attorney-General, 7 Bro. P. C. 235. Attorney-General v. City of London, 3 Bro. Ch. R. 171. Dummer v. Corporation of Chippenham, 14 Vesey, 245. See Angell f. Ames on Corporations 3d edit. p. p. 124– 130 on the power of a corporation to be seized in trust or for the use of an
tent to perform the duties of trustees, and to be proper and safe depositories of trusts; and among the almost infinite variety of purposes for which corporations are created at the present day, we find thema 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 the trust monies may be pursued in the hands of any persons 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
other, where the cases are well collected and the reason of them illustrated. Mr. Preston, in his Treatise on Conveyancing, vol. ii. p. 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 seized to a use ; and the rule ought to be consistent and uniform, either that a corporation can give and stand seized to a use, or that they can do neither. The NewYork statute of May 14th, 1840, ch. 318, with just and politic liberality, authorizes 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 ; (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 the commissioners of common schools, and trustees of school districts, for the benefit of common schools therein.
See Farmers' Fire Insurance and Loan Company, Laws of N. Y. April 17th, 1822, ch. 240.
kind; as for the purpose of loaning money on a deposit of goods and chattels, by way of pledge or security. It will *soon become difficult to trace the *281 numerous and complicated 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 specially restrained by their charters, or by statute.b Independent of positive law, all corporations have the absolute jus disponendi of land, 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 ;c 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. We have
• The New York Lombard Association, Laws of N. Y. April 8th, 1824, ch. 187.
• Co. Litt. 44. a. 300. b. 1 Sid. 161, note at the end of the case. 10 Co. 30. b. 1 Kyd on Corp. 76. 78. 108. 115. Com. Dig. tit. Franchise, 11. 15, 16, 17, 18. Parker, Ch. J., in First Parish in Sutton v. Cole, 3 Pick. Rep. 239.
'I Ves. g Bea. 226. 237. 240. 244, and it was so adjudged, in the case of Barry v. The Merchant's Exchange Company, 1 Sandford's Ch. Rep.
. By the statute of 4 and 5 Wm. IV. c. 76, all lay civil corporations in
not re-enacted in New York those disabling acts; but the better opinion, upon the construction of the statute for the incorporation of religious societies,a 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 ; *282 *and all others can buy and sell at pleasure, ex
cept so far as they may be specially restricted by their charters or by statute,b 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 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.c
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
England are restrained from selling or mortgaging any real estate, except under a government license in the mode prescribed.
· 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.
o Corporations holding for charitable purposes, says Lord Eldon, 1 Ves. f. Bea. 246, can alienate at law, but the alienee will be a trustee.
• Preston on Estates, vol. ii. p. 50.