Lord v. Essex Building Ass'n

Alvey, J., delivered the opinion of the Court. The mortgage to the Building Association, the appellees, was made on the 16th of April, 1868, and the decree there'on for sale of the mortgaged premises was passed on the 5th of June, 1871. The judgment in favor, of the appellants against the mortgagor was rendered on the 27th of June, 1868; and the question is, as between these mortgage and judgment creditors, which have priority in the distribution of the proceeds of sale ? and this depends upon the further question, whether the appellees have been legally incorporated, so as to enable them, in their corporate- capacity, to take and enforce the mortgage security as against the judgment creditors of the mortgagor, the judgment constituting a lien on the estate mortgaged? The right of the appellees to take the benefit of the mortgage, as against the appellants, is resisted on the ground that they have not been legally incorporated ;— that there is, as supposed, a radical defect in the proceedings necessary, under the law, to confer upon them corporate capacity.

The appellees claim to have been regularly incorporated under and in pursuance of the 30th and 31st secs, of the 26th Art. of the Code. By the latter of these sections it is provided, that before any such association shall become a corporation, they shall lodge with the clerk of the county, or the city, as the case may be, in which such corporation is designed to act, a copy of the articles of association of such corporation, signed by at least seven members, and certified by the secretary thereof, to be recorded in the office of such clerk. The defect that is supposed to exist in this case, consists in the omission of the secretary, who certified the copy of the articles of association for record, to certify to the fact, that the seven members whose names appear to the articles did in truth sign the same. The secretary certified that the ³²⁵ copy of the articles lodged in the clerk’s office for record was a true copy, ifand that the persons whose names are signed thereto are members ” of the association.

But it is insisted, that as the parties named could have been members without signing the articles of association furnished for record, the secretary should have done more than he did; that he should have certified that the members named, did in fact, sign the articles ; and because of his omission to do so, the association altogether failed to obtain a corporate character or capacity, as they intended, and that, therefore, they cannot maintain their claim as against the appellants. There is certainly no doubt of the general proposition as contended for on the part of the appellants, that where a corporation is created by statute, or under a general statute as in this case, which requires certain acts to be done before it can be considered in esse, there those acts must appear to have been done, in order to establish the corporate existence. Ang. & Am. on Corp., see. 83. For, as was said by the Court in the case of Agnew vs. The Bank of Gettysburg, 2 H. & G., 493 , “ Upon authority it is clear that the plaintiff, to maintain his case, must shew that by law he has been effectually created a corporation.” Such being the requirement, have the appellees shewn that it has been complied with ?

We think they have. The certificate of the secretary would seem to embrace by fair construction, every fact essential to entitle the parties associating, to have their articles or constitution recorded, and to become endowed with the faculties and capacity of a corporation. The copy of the articles furnished for record by the secretary,