a better or a fuller authority upon this point: Since an act "altogether null and void" can never be affirmed. It must, in the nature of things, require what is equivalent to some new action of the corporation, the same as if nothing had ever been done. A void act is the same as no act. There is therefore nothing to be confirmed. It is different where the act is merely voidable or defectively executed.

VI. This attempt to convey the real estate of the corporation by the vote of the directors merely, is in direct violation of the express requirements of the general statutes of the state then in force.

1. It was decided in Isham v. Bennington Iron Co., supra, that all such provisions in the general statutes, in regard to the conveyance of real estate, were exclusive; that the expression "may convey," as applied to corporations, means "shall convey," whenever they have occasion to do so, in the mode prescribed. Thus making the provision peremptory, as to the mode of conveyance, and discretionary only as to the occasion. The terms of the statute are: "Any public or private corporation, authorized to hold real estate, may convey the same by an agent appointed by vote for that purpose."

2. The argument that this statute does not require the vote of the corporation, but that the vote of the directors will be sufficient, is certainly at variance with the natural and obvious meaning of the language, and is such a departure from the express words of the former act, that, if there had been any purpose of changing the law, in so important a particular as giving directors authority to convey the real estate of corporations, it would have been fully expressed, and not left to any doubtful construction. This view of the import of the revision of the statutes is in accordance with the uniform course of decision in this court, holding that no alteration of the old law was intended unless it was clearly expressed. And this very statute, upon this very point, was before the court in McDaniels v. Flower Brook Manuf. Co., supra, where it is said: "And while these private corporations are required to keep records of their proceedings, and are only to convey lands by the vote of the corporation, through an agent appointed for that purpose, a deed executed in the manner this was, without reciting the vote of the corporation, will sufficiently indicate where the power is to be found." The court here,

in one short sentence of comment upon this very statute, twice use the terms, "vote of the corporation," as the indispensable power to convey the title of real estate of the company under the statute. We could not desire any more satisfactory evidence of the proper construction of this statute. And it has seemed to us that nothing short of the exigencies of a particular case could ever have suggested any other construction. We certainly could not entertain any doubt of this construction being always maintained by the court.

It

VII. The addition to the name of Merritt Clark, as I am the president of said company," in the body of the instrument, and in the acknowledgment also, with the addition "and the free act and deed of the company," has no tendency to show an execution by the company, or in the name of the company. has been decided, innumerable times, that such a mode of execution would not bind the company, even where the agent had the power to do so.18 This is the universally admitted rule, as to all sealed instruments executed under a power.19 The latter case is precisely in point, as the present instrument is executed as agent, but in his own name, by the agent, which renders it the deed of the agent and not of the principal. The two last cases are precisely in point to show that the instrument under which the plaintiffs claim is the deed of Merritt Clark in his private capacity, and not as president of the Rutland and Washington Railway. It is in vain then to argue that it can, by any possibility, convey the title of the company, if this were its only defect. And most of the cases referred to in Roberts v. Button, supra, are equally in point to the same effect. In fact, there has never been any question among lawyers in regard to this point since the resolutions in Combes's case.20

VIII. The argument that this instrument becomes the deed of the corporation, by the force of the corporate seal attached, was expressly negatived in the case of Isham v. Bennington Iron Co., supra, even where the corporate seal was shown to have been attached at the time of the execution. But in the present case

18 Taft v. Brewster, 9 Johns. 334; cases cited in Roberts v. Button, 14 Vt. R. 195.

19 Spencer v. Field, 10 Wendell, 87; Steed v. Wood, 7 Cow. 453. 20 9 Co. Rep. 75.

it is impossible to say this, both on account of the unusual position of the seal, and the fact that this seal was not adopted by the corporation until subsequent to the date of this instrument. It would be wonderful that under such circumstances any one should ever claim that this impression of the corporate seal rendered the instrument the deed of the company, and was equivalent to signing. It would be far more plausible to claim, that the fact of the seal being attached to the paper, after its execution, amounted to such a material alteration as to avoid the instrument. We might adopt this view if it were not that this impression of the corporate seal was in such a position, being at the very top of the paper, that it could not be regarded as forming or intended to form any portion of the instrument. If it were not for this it certainly must have that effect, since it is certain, from the proof, that the impression must have been made after the date of the instrument, and there is no doubt the instrument was executed on the day it bears date. And even were the seal affixed, as an act of execution, and we were to disregard the decisions of our own court, it will be found that the English courts now hold that sealing is not equivalent to signing.21 It has sometimes been held that in the case of corporations sealing was equivalent to signing. But that is denied in Isham v. Bennington Iron Co., supra, and in many other cases.

PART II. Having found in the instrument under which the plaintiffs claim, both an entire defect of power in the company to execute the deed, and a total want of any proper action on the part of the company, as well as an utter want of the proper form and mode of execution, it would seem idle to pursue the subject further. But as we have thus far spoken chiefly of the effect of the registry of a defective deed, and shown that it has no operation upon subsequent encumbrancers, it may be inquired by some, whether there may not exist such notice in fact in the case as to affect the interest of subsequent encumbrancers.

Div. IX. There is no satisfactory evidence of any such notice, except what results from the fact of Miller being one of the trus

21 The early cases of Lemaine v. Stanley, 3 Lev. 1, and Warneford v. Warneford, 2 Strange, 764, are rejected as unsound. See Wright v. Wakeford, 17 Vesey, 458; Lord Hardwicke in Gryle v. Gryle, 2 Atk. 76; Parker, Ch. B., in Ellis v. Smith, 1 Vesey, Jr., 12.

tees in both mortgages, and Baldwin the treasurer of the company, (and through whom the present holders of the several mortgage bonds derive their title,) having had knowledge of the attempt to execute a former mortgage. But there are at least two unanswerable reasons why these facts cannot affect the interest of the holders of the second mortgage bonds.

1. These mortgage bonds, by the uniform current of the American decisions,22 are regarded as strictly negotiable paper.23 Of course notice to the payee or trustee, or to any former holder of such paper, cannot affect the interest of the present holders. Any notice of a defect in negotiable paper will be of no avail beyond those to whom it is communicated, unless it is attached to the paper itself. All the holders of these bonds testify distinctly that they have no knowledge of any former mortgage.

2. The notice to all the parties was of such a character as not to affect them with any fradulent purpose in regard to the first mortgage bondholders; and that is indispensable in order to postpone the second bonds to the first, even in his hands. The notice of the existence of the instrument under which the plaintiffs claim, was connected with the fact that the instrument was informal and wholly invalid and void. Such notice was then, to all intents as to every one, wholly void and of no effect. No party had any occasion to inquire into a title, when he was told, in the very breath communicating the fact of its existence, that it had never been legally executed by the corporation.24 It was more calculated to put him off inquiry than no notice at all.

3. And it is very questionable whether the fact that Miller was trustee in the former attempt to execute a mortgage could be of any force as to the subsequent mortgage, even if the securities had not been strictly negotiable. 1. He was, even as to an instrument not negotiable, strictly an agent. 2. The notice of the former attempt to execute a mortgage being acquired in another transaction, would be no notice to affect those interested in a different and distinct transaction. 3. By With the exception of Penn. Diamon v. Lawrence Co., 37 Penn. St. 353, which rests upon peculiar grounds.

"Cases cited supra, 239; White v. Vt. & Mass. R. R., 21 How. (U. S.) 575; Chapin v. Same, 8 Gray, 575.

21 Story, Eq. Jur. § 400 b, and cases cited.

lodging in his hands the $250,000 bonds for the benefit of the former bondholders, it showed that, instead of attempting to gain an advantage over them by the execution of the second mortgage, he was really doing them a service by procuring them bonds secured by a first mortgage on the road, in exchange for their bonds which were not secured at all. But these questions are not important to the interests of the present bond fide holders of the bonds, and need not be here discussed or settled. If it were conceded that Baldwin and Miller both acted fradulently as to the inchoate rights under the first mortgage, which is very questionable, it will not affect the bondholders under the second mortgage.

4. It is claimed that the other trustees had notice in fact of the first mortgage. But this is denied by them both, and cannot be regarded as sufficiently established. And if it were proved it does not essentially vary the plaintiffs' case. That will not affect the equity of the bondholders any more than notice to the payee, or any former holder of any other negotiable security.

These trustees sustain no relation of agency by which they can be regarded as representing the future bona fide holders of the securities under the mortgage. They are merely nominal parties. This is so declared in Sturges v. Knapp.25

This point is settled in Curtis v. Leavitt,26 and in numerous other decisions in the American courts, where it has been held that the fact that the trustee, named in railway bonds and in government securities, or those who disposed of them in the first instance, or any subsequent holder, having acted fraudulently or even feloniously, will not affect the title of a bond fide holder.

The great difficulty with the plaintiffs' case is, that they have acquired no equitable rights through any agency of the corporation; and the equity of the defendants is most unquestionable, and they, having both the equity and the legal priority, cannot be postponed to an inferior equity.

X. The claim in argument that the court, failing to maintain the first contract in its present form, shall treat it as an agreement to execute a mortgage, and decree specific performance,

25 31 Vt. R. 54.

26 15 N. Y. Rep. 174, 258.