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assert his own title. Neither lands nor any interest therein are to be conveyed by mere oral agreement, and the declarations or admissions of a demandant, made in good faith and by mere mistake, cannot estop him from proving the legal title to his estate, even if but for such admissions or declarations the tenant might not have incurred the expenditures which he has made. Tolman v. Sparhawk, 5 Met. 469; Brewer v. Boston and Worcester R. R., id. 478. We are aware that some decisions in other States have held a different rule, but as we deem that laid down by the presiding judge to be well sustained by our own authorities it does not seem necessary to consider them." To same effect, Hass v. Plautz, 56 Wis. 106; S. C., 43 Am. Rep. 699.
THE PRESUMPTION OF SURVIVORSHIP.
RULE I. There is no presumption as to the order in which two or more persons died who are shown to have perished in the same accident, shipwreck or battle. The law regards them as having died at the same instant.
The common law (unlike the civil law in this respect which answers the questions arising out of the death of several persons in a common calamity by recourse to a number of fixed presumptions based on the age, sex and strength of the parties) (1) does not attempt to ascertain, in the absence of any evidence on which to go, the survivor of a common catastrophe. Strictly it may be said that the common law presumes neither that one survived nor that all perished at the same moment. But by leaving the matter as one unascertainable, "the practical consequence," as has been said, "is nearly the same as if the law presumed all to have perished at the same moment." It is in fact exactly the same. Where two persons (whether of the same or different ages, sexes or physical conditions) perish in an accident, shipwreck or battle, and there is no evidence to show which one of the several survived, the law will not raise any presumption from the fact that one was younger or stronger, or of the more hardy sex, that he survived an older or a weaker or a less hardy victim. The party alleging that one survived the other must prove it; the onus is on him who claims a right or title upon the theory of the survivorship of one to prove that fact affirmatively.(2)
1. H. and his wife, while in a railroad car together, are precipitated through a bridge into a river. They are afterward found dead, and no proof of one surviv
(1) So in California Civ. Code, § 1963, subd. 40.
(2) Mason v. Mason, 1 Merivale, 307 (1816); Wallaston v.Berkeley, 2 Ch. Div.213 (1876); Re Heuss. 2 Salk. 533; Re Wheeler, 37 L. J. (P. & M.) 40; Robinson v. Sallier, 2 Woods, C. C. 187 (1875); Contra Calvin, Procurator-General, 1 Hagg. Ecc. 92 (1827); and see Durrant v. Friend, 5 De G. & Sn. 345 (1852); Scutton v. Patullo, L. R., 19 Eq. 375 (1875); R. v. Hay, 1 W. Black, 646. This was the celebrated case of General Stanwix, who, with his wife and daughter by a former marriage, perished at sea on a voyage from Dublin to Eugland. Mr. Teame composed two ingenious arguments, one in favor of each of the claimants, which are printed in his posthumous works. In Selleck v. Booth, 1 Tow. & Coll. C. C. 117, Vice-Chancellor Knight Boice held that a presumption of priority of death might arise from the comparative age, strength and health of the parties. In this case two brothers perished in a shipwreck; one was the master; the other the second mate of the vessel; and he ruled that the former (the elder) would be presumed to have survived the latter as being the most expe. rienced sailor. Mr. Taylor (Ev. vol. 1, 2160) says of this case that it cannot be relied on as authority, since it is opposed to a long current of decisions."
ing the other is presented. Held, that neither tra mitted any rights to the other, and the heirs of must take.(3)
2. A father and two children were lost in a shi wreck, there being no evidence of survivorship. T next of kin of the children claimed. Held, that t burden of showing that they survived their fath being upon them, they could not recover.(4)
3. A father seventy-three years old, and his daug ter thirty-three years old, being on board a steamsh which was lost at sea, perished in the same calamit and nothing was shown which tended to prove th one died before the other. The heirs of the daught can take nothing as coming to her from the father.(
4. A. made a will, leaving some legacies and appoin ing his wife residuary legatee; she died, leaving sever children. A married again, and had no child. A., wi his wife and all his children, afterward were lost sea. Held, that the will was not revoked. (6)
5. T. and his wife perished at sea in the same shi wreck, and there was no evidence who survived. Th question rose whether the relatives of the husband of the wife were entitled to the residue of his estat Held, that the former were.(7)
6. A husband and wife were lost with all on boar of a packet in the English channel. The next of ki of the husband claimed certain as property coming t him as the heir of his wife. There being no evidenc that the husband survived the wife, the application wa refused.(8)
7. A husband and wife were swept by the same way into the sea and not afterward seen. Held, that th court could not assume that either survived the other (9)
8. W. and his wife were killed at the massacre a Cawnpore on or about the 27th of June, 1857. Ther was no evidence which perished first. There was n presumption that either survived the other. (10)
9. Two persons, husband and wife, made separat wills. In the husband's will the property was given t the wife," and in case my wife shall die in my lifetime then to W. W. in trust for the children on their com ing of age." In the wife's will (made under a powe given her by her deceased father, in default of the ex ercise of which the property was to go to relatives spe cifically named) property was given to her husband and "in case my husband should die in my life-time, then to W. W. absolutely. The husband and wif and two children perished at sea, being all swept of the deck by one wave, and all disappearing together Held, that there was no presumption that the husband had survived the wife or the wife the husband; tha it was necessary that W. W. should show affirmatively that one or the other had survived, and that in the ab sence of such proof the property went to the relative specifically named in the will of the wife's father, as there had been no will by the husband nor any ap pointment by the wife. (11)
10. A mistress made a will, in which she left her housekeeper the whole of her property. Mistress and
(3) Re Hall, 12 Ch. L. 12, 68 (1879).
(4) Newell v. Nichols, 12 Hun, 604 (1878). (5) Coye v. Leach, 8 Metc. 371 (1844).
(6) Wright v. Netherwood, 2 Salk. 592 (1743).
(7) Taylor v. Deblock, 1 Phill. 261 (1815); Re Selwyn, 3 Hagg Ecc. 748 (1831). In this case the court said: "Instances have occurred where under similar circumstances the question ha: been, which of the two survived? But in the absence of clea evidence, it has generally been taken that both died in the same moment." Re Murray, 1 Curt. 596 (1837).
(8) Satterthwaite v. Powell, 1 Curt. 705 (1838).
10) Re Wainwright, 1 Sw. & Tr. 257 (1858); Re Ewart, id. 258 (1859).
(11) Wing v. Ungrave, 8 H. L. Cas. 183 (1860).
housekeeper were murdered at the same time, there being no evidence which one died first. The claimants under the servant could not succeed.(12)
11. W., her husband and child sailed from New York to Europe in March, 1841, in the steamship Presideut. Before this she had procured a policy of insurance on her life for the benefit of her daughter. Neither the President nor any of its passengers were ever subsequently seen or heard of. There was no presumption that the daughter survived her mother.(13)
12. A mother and an infant son were lost in a ship. wreck. The presumption is that they died at the same time.(14)
13. A. and B., husband and wife, are killed in the same casualty, e. g. (the wrecking of a railroad train by the giving way of a bridge). The presumption is that they died at the same time. (15)
14. A father, with his two children, perished in a shipwreck. There is no presumption either that a particular one of the three survived the other, or that they did not all perish at the same instant.(16)
In case 3 it was said: "The case stands thus: Sylvanus Keith and his daughter, Mrs. Coye, perished in the same disaster. No fact is shown giving the least indication that either party, from the nature of the accident or the position of the parties, had any advantage over the other for protecting life. Nothing is shown of their particular capabilities arising from personal strength or vigor. Nothing indeed is put into the case to control it in favor of either besides age and sex; and these are not decisive tests in the present case. In truth there is nothing to show that either the father or the daughter survived the other. The evidence *** fails to show that the estate of Sylvanus Keith ever vested in Caroline E. Coye, his daughter. To effect this it was necessary that she should have survived her father. We do not feel authorized to say that this fact is satisfactorily established. For aught that appears in the present aspect of the case they may both have perished together. This being so, and no arbitrary presumption being authorized by law in such cases arising from age or sex, the consequence is that those who seek to enforce their rights as heirs at law of Caroline E. Coye must fail in establishing their right to a distributive share in the estate of Sylvanus Keith."
"With respect to the priority," said Sir William Wynne in case 4, "it has always appeared to me more fair and reasonable in these unhappy cases to consider all the parties as dying at the same instant of time than to resort to any fanciful supposition of survivorship on account of the degree of robustness. * ** Therefore taking into consideration that there was no wife or child at his death, I pronounce for the will."
In case 5 Sir John Nicholl said: "There is no evidence direct as to this point; some inferences have been deduced. It is stated that the two bodies were found together. This tends to show that they were in the same situation at the time of death. Upon the whole, I am not satisfied that proof is adduced that the wife survived. Taking it to be that both died together, the administration is due to the representatives of the husband. I assume that both perished in the same moment, and therefore I grant the administration to the representatives of the husband. I am not deciding that the husband survived the wife." In case 6 the judge said: "The principle has been
(12) See Doe v. Nepean, 5 B. & C. 92 (1833). (13) Moehring v. Mitchell, 1 Barb. Ch. 265 (1846). (14) Stinde v. Goodrich, 3 Redf. 87 (1877); Re Ridgway, 4 Id. 226 (1880).
(15) Kansas Pac. R. C. v. Miller, 2 Cal. 443 (1874); Russell v. Hallett, 23 Kans. 276 (1880).
(16) Newell v. Nichols, 75 N. Y. 78 (1878).
frequently acted upon that where a party dies pos sessed of property that the right to that property passes to his next of hin, unless it be shown to have passed to another by survivorship. Here the next of kin of the husband claims the property which was vested in his wife: that claim must be made out; it must be shown that the husband survived. The property remains where it is found to be rested unless there is evidence to show that it has been divested. The parties in this case must be presumed to have died at the same time, and there being nothing to show that the husband survived his wife, the administration must pass to her next of kin."
In case 7 Mr. Justice Wightman said: "We think there is no conclusion of law upon the subject; in point of fact we think it unlikely that both did actuually die at the same moment of time, but there is no evidence to show which of them was the survivor."
"Where two persons," said Lord Chelmsford in case 9, are at one and the same instant washed into the sea, and disappear together, and are never seen any more, it is not possible for any tribunal called upon judicially to determine the question of survivorship to form any judgment upon the subject which can be founded upon any thing but mere conjecture derived from age, sex, constitution or strength of body or mind of each individual, and as our law has not established any rules of presumption for these rare and extraordinary occasions, the uncertainty in which they are involved leaves no greater weight on one side or the other to incline the balance of evidence either way. If therefore it is necessary for W. W. to establish his claim under the will of Mrs. U., should prove that she survived her husband, he must altogether fail."
In case 14 it was said: "There is no legal presumption (p. 87, 75 N. Y.) which courts are authorized to act upon that there was a survivor any more than that there was a particular survivor. It is not claimed that the children died at the same time. Indeed it may be conceded that it is unlikely that they ceased to breathe at precisely the same instant,and as a physical fact it may perhaps be inferred that they did not. But this does not come up to the standard of proof. The rule is that the law will indulge in no presumption on the subject. It will not raise a presumption by balancing probabilities, either that there was a survivor or who he was. In this respect the common law differs from the civil law. * * It is regarded as a question of fact to be proved, and evidence merely that two persous perished by such a disaster is not deemed sufficient. If there are other circumstances shown, tending to prove survivorship, courts will then look at the whole case for the purpose of determining the question; but if only the fact of death by a common disaster appears, they will not undertake to solve it on account of the nature of the question and its inherent uncertainty. It is not impossible for two persons to die at the same time, and when exposed to the same peril, under like circumstances. It is not as a question of probability very unlikely to happen. At most the difference can only be a few seconds. The scene passes at once beyond the vision of human penetration, and it is as unbecoming as it is idle for judicial tribunals to speculate or guess whether during the momentary life struggle one or the other may not have ceased to gasp first, especially when the transmission of the title of property depends upon it, and heuce in the absence of other evidence the fact is assumed to be unascertainable, and property rights are disposed of as if death occurred at the same time. This is done, not because the fact is proved, or that there is any presumption to that effect, but because there is no evidence and no presumption to the contrary,
1. C., his daughter H. and son W. perished in a shipwreck. The ship, after striking, was swept by the waves, and C., who was at the time on the lower deck, was washed off. Subsequently H. and W. were seen on the upper deck. The presumption was that H. and W. survived their father. (19)
2. B. and his wife perished on board a steamboat at sea by the explosion of one of the boilers, which shattered the vessel and caused it to fall to pieces and sink in about half an hour. Mrs. B. was seen and heard calling for her husband after the disaster, but he was not heard to answer, nor was he seen at any time after the explosion. The presumption was that the wife survived the husband.(20)
3. U., his wife and daughter C. were lost in a shipwreck. A wave swept them from the deck simultaneously. U. and his wife were not afterward seen, but C. was subsequently lashed to a floating spar by a sailor to whom she called. The presumption was that C. survived ker parents.(21)
4. Father and son were hanged for a crime at the same time. Witnesses observed the son move his legs after the father had apparently become insensible. The presumption was that the son survived. (22)
JOHN D. LAWSON.
ST. LOUIS, Mo.
PERSONAL INJURY - CONDITION OF PLAINT-
WISCONSIN SUPREME COURT, MARCH 18, 1884.
After a plaintiff suing for injuries occasioned by a fall upon
A person, though not a medical expert, may testify with respect to the present injury he is suffering from a fall. It is a matter of fact and not mere opinion.
reason of a defective sidewalk in the defendant city From judgment entered on verdict for plaintiff, defendant appeals.
Hudd & Wigman, for respondents.
Charles E. Vroman and W. J. Lander, for appellant.
CASSODAY, J. Counsel for the defendant assigns as error (1) that the court improperly overruled certain objections to questions put to the plaintiff, Mrs. Wright, while being examined in her own behalf. After describing her fall, and stating her pregnancy at the time, she was asked: "Did any thing happen to you by reason of that fall?" This was objected to as incompetent, and the objection was overruled, and the defendant excepted. To that question the witness answered, in effect, that she fell on Saturday afternoon, and had a miscarriage the following Monday; that she went home as usual, but that it was hard getting there, and that she felt faint. Neither the question nor the answer seems open to the objection made. Objection on the ground of incompetency generally goes to the fitness, ability, or capacity of the witness; the quality, fitness, adequacy, or legal sufficiency of some document, record, writing, or other evidence. It is sometimes inadvertently used in the sense of irrelevancy or immateriality. But the evidence in question was within the issue, and bore directly upon the question of damages. In no sense can it be regarded as incompetent.
2. The same witness was also asked this question: "State whether you are not now suffering from the effects of that fall?" This was objected to as leading, immaterial, and incompetent. Certainly it was neither incompetent nor immaterial, for the reasons just given. A leading question is one which unmistakably suggests the desired answer. McPherson v. Rockwell, 37 Wis. 159. The only word in the question tending to suggest such answer is the word "not." In In view of the fact that she had already testified in effect that the fall produced a miscarriage, which must necessarily have caused suffering, we cannot say there was any abuse of discretion in overruling the objection. Id. The leading feature of the question only went to the continuation of the suffering.
3. The same witness was also asked this question: What injury are you suffering from now in consequence of that fall?" This was objected to as immaterial and incompetent, and for the further reason that the witness had not shown that she had medical knowledge, or was capable of testifying as an expert. The question was certainly material and competent for the reasons given. Was it objectionable for want of medical knowledge or capacity of the witness to testify as an expert? The mere opinion, without knowledge, of a non-expert is inadmissible. Yanke v. State, 51 Wis. 469; S. C., 8 N. W. Rep. 276. But here the inquiry was as to what injury the witness herself was then suffering from in consequence of the fall? It did not necessarily call for the exercise of any scientific knowledge or skill. It called for facts relating to the then present condition of the witness, her suffering and the source of it. The nature of the injury was such that the cause of her suffering was more or less latent and concealed from common observation, and yet necessarily perceptible to the senses of the witness. It in effect asked her what pain or disability she was then enduring in consequence of the fall. It is very much like the question put to the plaintiff witness whe sued for personal injury in Creed v. Hartman, 8 Bosw. 123, which was this: "State to the jury the effect of that injury upon you, and how your situation is.' And it was held admissible, on the ground that there was no opinion of an expert elicited or requested. It
simply called for "facts of which the court said, "she, in some respects, could alone be fully apprised, and in all was best apprised." That case was affirmed in the Court of Appeals; but seemingly, counsel abandoned that objection, for it received no attention in that court. 29 N. Y. 591. To the same effect is South, etc., Co. v. McLenden, 63 Ala. 266; Laws. Ex. Op. Ev. 470 et seq.
Mrs. Wright was certainly much better qualified to state her own internal condition, her own pain and suffering, and perhaps the source and cause of it, than any one else, and especially better than any non-expert. But courts have gone further, and held that unskilled witnesses are not precluded from testifying to such facts as come within their own observation relating to ordinary injuries or sickness of those with whom they have consorted. Sydleman v. Beckwith, 43 Conn. 9; Parker v. Boston, etc., Co., 109 Mass. 449; Com. v. Sturtivant, 117 id. 122; Thompson v. Stevens, 71 Peun. St. 161; Elliott v. Van Buren, 33 Mich. 49; Wilkinson v. Mosely, 30 Ala. 562; Rogers v. Crain, 30 Tex. 284; 1 Greenl. Ev., § 440, and notes. The rule seems to be based on the ground of necessity, and confined to cases where the subject of inquiry is so indefinite and general as not to be susceptible of direct proof, or 1 where the facts are so numerous or changeable as to be incapable of being held in the memory or detailed to the jury. Id. We must therefore conclude that where a plaintiff sues for personal injury and is a witness in his own behalf, and his pain, suffering, or internal condition is pertinent to the issue and perceptible to his senses, a question put to such party eliciting a description of such pain, suffering, or condition, and not necessarily requiring scientific skill or knowledge, is a question calling for facts, and not mere opinion.
4. The court submitted to the jury the question whether the plaintiff, Sarah, at or about the time described in the complaint, fell on the sidewalk and received injuries by the fall. The jury answered, yes. The court also submitted to the jury the question whether the plaintiff, Sarah, was in the exercise of ordinary care when she was thrown on the sidewalk and received her injuries. They answered, yes. Complaint is made, that in submitting each of these questions, the judge expressed himself to the effect that he knew of no evidence in the case that would justify them in answering either question in the negative. The first question does not find that the miscarriage was the result of the fall, nor the extent of the injury, but simply that she fell and was injured. We find no evidence to the contrary. Upon the undisputed evidence, the court would have been justified in directing the jury to answer each of these questions as they did. Berg v. Chicago, M. & St. P. R. Co., 50 Wis. 419; 7 N. W. Rep. 347; Gammon v. Abrams, 53 Wis. 323; 10 N. W. Rep. 479; Schwitzer v. Connor, 57 Wis. 177; 14 N. W. Rep. 922. This being so, the defendant is in no position to avail itself of error in the manner of submitting either of those questions; much less in the mere expression of an opinion as to the absence of such evidence.
5. We do not understand that the court charged the jury that the plaintiffs might recover not only for loss of the wife's services, but also for the expense of labor substituted for the ordinary service of the wife. The charge did direct them that they "must consider all the evidence touching" those and the other facts in the case. But when the court came to tell the jury what they should allow as damages, if they found for the plaintiffs, there is nothing said as to the expense of such hired help.
the time of the accident, and did that materially coutribute to the injury?" and then refusing to instruct the jury "that a slight want of ordinary care assisting the accident, contributing to it, is the contributory negligence implied by law, is the negligence mentioned in the question submitted."
For the want of sufficient evidence to support an affirmative finding, the court properly refused to submit to the jury the question proposed. For the same reason, the court properly refused to instruct the jury upon that question. Cronin v. Delavan, 50 Wis. 375; 7 N. W. Rep. 249. Besides the instruction itself was erroneous. There is no such thing as "contributory negligence implied by law." It may be implied from admitted facts. Holt v. Peters, 55 Wis. 411; 13 N. W. Rep. 219. So it may be inferred, as a matter of fact, from the plaintiff's own evidence, if it be such as to justify the inference. Id.
7. Error is assigned because the court refused to set aside the verdict and grant a new trial, on the ground that the findings to the effect that the city authorities had knowledge, actual and constructive, of the defective condition of the sidewalk, at and previous to the time of the accident, were against the weight of evidence. It is enough to say, upon this question of fact, that each member of the court has carefully examined the record, and none of us feel authorized to reverse the judgment for want of evidence. Nor would we be justified in reversing the judgment on the ground of excessive damages. There was evidence tending to prove and the jury found that the injuries were permanent. This being so, we are not convinced that the jury were misled by passion, prejudice, or ignorance. The power of setting aside verdicts for excessive damages in an action of tort is very sparingly used, and never except in a clear case. Corcoran v. Harran, 55 Wis. 128; 12 N. W. Rep. 468.
The judgment of the Circuit Court is
RIGHT TO MORTGAGE CORPORATE FRAN
UNITED STATES CIRCUIT COURT, S. D. NEW YORK,
6. Error is assigned for refusing to submit to the N equity. jury the question: "Did slight want of ordinary care on the part of the plaintiff, Sarah L. Wright, exist at
MEMPHIS & L. R. Co. v. Dow.*
A corporation cannot retain property acquired under a trans-
A corporation is not precluded from contracting with its bond-
* 19 Federal Reporter, 388.
Dillon & Swayne, for plaintiff.
WALLACE, J. The complainant's bill is filed against the trustees and holders of the mortgage bonds of the complainant for $2,600,000, and the mortgage upon its corporate franchises and property for securing the same, executed May 2, 1877, seeking to annul the bonds and mortgage, upon the ground that they were issued and executed by the complainant without corporate power in that behalf.
A brief statement of the facts relating to the creation of the mortgage bonds, their origin, consideration and purpose, will serve to present the legal questions involved. The complainant, created under a special act of the Legislature of Arkansas, is a reorganized corporation, which has succeeded to the property and franchises of a former corporation of the same name under the foreclosure of a mortgage of that corporation, and a conveyance under the decree of foreclosure. By the terms of that mortgage, and by the provisions of the decree of foreclosure in conformity therewith, it was provided that if the trustees named in the mortgage should be requested so to do by a majority of the holders of the bonds secured thereby they might purchase the property, and in that case no bondholder should have any claim to the premises or the proceeds thereof, except for his pro rata share, as represented in a new corporation or company to be formed, by a majority in interest of said bondholders, for the use and benefit of the holders of the mortgage bonds. The trustees purchased at the sale, and thereupon the bondholders proceeded to organize the present corporation. There was due to the holders of the old mortgage bonds $2,600,000 of principal, and $1,300,000 of unpaid interest, and the scheme of reorganization contempiated the acceptance by the bondholders of the new mortgage bonds in place of the old ones, and of the capital stock in place of their accrued and unpaid interest. Accordingly, by the terms of the reorganization agreement, the capital stock of the new corporation was fixed at $1,300,000, divided into 13,000 shares of $100 each, and was declared to be full paid; and by the same agreement the trustees who had purchased at the foreclosure sale were directed to transfer the property and franchises purchased by them to the new corporation upon the condition, among others, that the new corporation should execute and deliver to said trustees the new mortgage bonds for $2,600,000, now sought to be set aside. Thereupon-the new corporation having agreed to accept a conveyance of the property and franchises of the old corporation pursuant to the terms of the reorganization agreement--the trustees conveyed the same to the new corporation, the deed of conveyance reciting the conditions upon which, as trustees, for the owners of the outstanding mortgage bonds, they were authorized to make such conveyance, and further reciting the acceptance of such conditions by the new corporation. The corporation accepted this conveyance, and took possession under it. Every certificate of shares of stock issued by it contains a recital that the holder takes his stock subject to the mortgage bonds in question. The new mortgage bonds were issued and delivered to the trustees for the holders of the outstanding mortgage bonds, and were distributed by the trustees pro rata to the holders of those bonds. The capital stock was also apportioned among the holders of these bonds pro rata, and certificates were delivered for the shares to which each bondholder was entitled.
After the reorganized corporation had operated the railroad for several years, and early in the year 1880, the majority of the stock was acquired by Messrs. Margrand, Gould and Sage in the interest of the St.
Louis, Iron Mountain and Southern Railway Company. The object seems to have been to acquire control of the corporation and subordinate its management to the interest of the Iron Mountain company. The parties who thus acquired control now control the corporation, and speaking through it, insist that the mortgage bonds, which were the consideration of the transfer of the property to the corporation, are void, and should be set aside.
The case then is this: The complainant is a corporation which was brought into life by a body of creditors of a pre-existing corporation, who had succeeded to all the property thereof, and who proposed to convey such property to the complainant upon receiving, among other considerations, the mortgage bonds in suit. The complainant assented to this proposition, accepted a conveyance of the property, aud executed its mortgage bonds. It asserts now that although it had power to acquire the property it had no lawful power to pay for it in the terms and manner promised. Its contention is founded upon a section of the charter or act of incorporation, by which alone it is claimed its power to create a mortgage is conferred, and upon a provision of the Constitution of Arkansas which limits the power of corporations of that State in issuing bonds. The section of the charter relied on is section 9, which is as follows:
"The said company may at any time increase its capital to a sum sufficient to complete the said road, and stock it with any thing necessary to give it full operation and effect, either by opening books for new stock, or by selling such new stock, or by borrowing money on the credit of the company, and on the mortgage of its charter and works."
The constitutional provision is contained in article 12, and declares:
No private corporation shall issue stock or bonds except for money or property actually received or labor done; and all fictitious increase of stock or indebtedness shall be void."
As the bonds and stock issued by this corporation were issued for property actually received, viz., the said railroad and all the corporate property, it is not obvious how this constitutional provision has any application to the present controversy. It is assumed in the argument of counsel for the complainant, and reiterated several times, that the complainant received no consideration for the mortgage bonds. Upon what theory this is claimed or can be maintained is not apparent, and indeed is incomprehensible. The original corporation had been divested of its property by the foreclosure sale. The newly-organized corporation accepted a reconveyance upon condition of executing the new mortgage bonds to the vendors. Whether the complainant is a new corporation or whether it is the old corporation, need not be considered, because in either view the mortgage bonds were the consideration of the conveyance.
The proposition which is advanced that the vendors and the vendees were the same persons, and therefore there could be no contract or sale, is not even technically correct. One of the parties was the corporation; the bondholders, by their trustees, were the other parties. True, the stockholders of the corporation were also the bondholders, but the circumstance that all the stockholders of a corporation are at the same time the several owners of property, which the corporation wishes to buy, does not destroy the power of the parties to contract together. Suppose there were two corporations, each composed of the same stockholders, can it be seriously contended that one corporation could not make a contract with the other? A corporation may contract with its directors; why not with its stockholders? If the complainant ever acquired