
    Burr’s Ex’or & als. v. McDonald & als.
    July Term, 1846,
    Lewisburg.
    (Absent Bbooke, J.)
    1. Joint Stock Company — Officers.—The officers of a joint stock company incorporated for private purposes, have no private franchise in their offices; but are the mere ministerial agents of the company, to conduct its business for the benefit, and under the authority of the company.
    2. Same — Meetings at Time Other Than That Pré» scribed by Charter — Removal of Officers. — Although by the charter of such a company, a general meeting is to be held at least once annually, at such time and place as the *by-laws prescribe; the company may hold other general meetings as often as the interests of the company render it necessary: and at such general meetings, the stockholders may remove and appoint officers, if the welfare of the company requires it. And a fortiori may this be done, where the officer is elected for a year and until a successor is appointed, and the year has expired.
    3. Same — Officers — Irregular Election — Effect. — Though the election of an officer of such a company has been irregular, such election constitutes him the officer lie facto; and his acts done under the authority of the company, and colore officii, would he binding on the company; and could not be impeached by strangers, on the ground of want of authority.
    4. Same Deed -Who May Execute. — It is competent for such a company to execute a deed by an agent duly empowered and authorized to do the act.
    5. Same — Same—Preference of Stockholders — Statute. —A deed by a private corporation in trust to pay its debts, which gives preferences in favour of some of the stockholders for their suretyships for the corporation, if made prior to the act of February 13, 1837, Sess. Acts 1836-7, ch. 84, § 17, p. 79, is legal and valid.
    
      6. rianufacturing Corporations — Authority to Borrow Money. — A private manufacturing corporation may borrow money for the purpose of carrying on its operations.
    By an act passed the 3d of January 1833, the General Assembly incorporated the Catawba Iron Works Company, for the manufacture of iron &c., in the county of Botetourt. The charter of the company gives it the usual powers, and provides that a general meeting of the company shall be held at least once in every year, at such time and place as shall be prescribed by its by-laws: that the officers of the company shall be elected at its general meeting, and shall hold their offices for one year, and until their successors shall be appointed; and that the president and directors shall have power to call special meetings of the stockholders to supply vacancies in their own body, and among the inferior officers and clerks authorized by the company, and to do all other acts and things touching the affairs of the company, not otherwise specially provided for.
    This company was organized on the 11th of July 1834, when John M. Harvey was elected president. In December 1834, at a meeting of the stockholders of the corn-pany, certain by-laws were adopted, one of which constituted the president, who lived in Botetourt, the *agent of the company for the management of its affairs in that county, and another prescribed that the regular meeting of the stockholders should be held between the 15th of February and the 1st of March.
    When this company was organized its whole capital was invested in land, on which was its furnace and ore banks, and which was intended to furnish it with wood for the manufacture of iron. Being without means for carrying on its operations, three of the stockholders, John M. Harvey, John R. Triplett, and David I. Burr, agreed to endorse three notes of the company for 5000 dollars each. These notes were made by the company, and endorsed by these persons, or by the partnerships of which they were respectively partners, and one of them was discounted at the Bank of Virginia, one by the Farmers Bank, and the third by the branch of the Bank of Virginia at Buchanan. These notes were regularly renewed until the death of David I. Burr in 1838. After his death the name of his executor was substituted for his at the Bank in Buchanan, and his surviving partners, who carried on business under the name of David I. Burr & Co., continued their endorsements on the two notes discounted at the Banks in Richmond. Their liability was however merely nominal, as David I. Burr, considering these endorsements as properly his own, though made in the name of his firm, directed by his will, that his partners should be indemnified out of his estate for any moneys they might be required to pay on account thereof.
    At a meeting of the president and directors of the company, on the 4th of January 1837, the president reported that the quantity of pig iron made at the works in the year 1836, was about six hundred and fifty tons, and would yield a handsome net profit to the stockholders, but from the difficulty of getting the iron to market, the profits could not be realized till some time late *in the present year; whereupon they adopted a resolution, that in consideration thereof, and more especially that coal of a good quality had been found on the land of the company, and the increased value of iron, they were of opinion that the stock had advanced fifty per cent, which should be estimated as profits; and they therefore recommended to the stockholders to declare a dividend of fifty per cent, of profits, the same to be paid to the stockholders in certificates of stock, according to their respective shares; and at a general meeting of the stockholders, on the 17th of February following, this recommendation was approved, and certificates of stock directed to be issued accordingly. This was the only dividend ever made by the company. At this general meeting, John M. Harvey was again elected president of the company.
    On the 6th of August 1840, there was a general meeting of the stockholders of the Catawba Iron Works Company, called by the president and directors. At this meeting, the stockholders (all of whom but the president lived in Richmond) were informed that the company was very much in debt; and it was determined to make provision for the payment thereof. At that time there was on hand near seven hundred tons of iron. This iron- the stockholders supposed to be in the hands of the president as the agent of the company; but they were then informed by John M. Harvey, that the iron was not in his hands as president, but it was in the hands of John M. Harve3' & Co. and would be held by them to indemnify them for their advancements and liabilities for the company. Under this state of things, the meeting not being prepared to act finally, adjourned to meet on the 10th of the month. On that day, the stockholders again met, and Harvey, who did not attend the meeting, still insisting upon the right of John M. Harvey & Co. to retain the iron on hand for their indemnity, a resolution was adopted, directing a deed to *be prepared, conveying the whole of the property of the company to certain trustees, who should sell the same, and apply the proceeds to the payment of the debts of the company, in the order specified in the resolution. The meeting then adjourned to the 13th of the month; when it appearing that there had been no election of officers of this company since the 17th of February 1837, it was resolved that the stockholders would then proceed to elect a president and four directors. And thereupon Thomas Samson, one of the partners both of the old and new firms of David I. Burr & Co. was chosen president.
    At the same meeting, the deed which had been directed to be prepared, was presented, and being examined and approved by the meeting, it was resolved, “That Thomas Samson the president of the companj’, be directed to execute the same for the Catawba Iron Works Company, in such manner as that it may be admitted to record in the clerk’s office of the County Court of Bote-tourt, and forward the same to that office.” The deed was accordingly executed by affixing the seal of the company, and subscribing it: The Catawba Iron Works Co. by Thomas Samson, president C. I. W. C. ; and it was duly acknowledged by him as the deed of the company before two justices of the peace of the City of Richmond, and upon their certificate, admitted to record in the clerk’s office of the County Court of Botetourt, where the property conveyed lay.
    The deed recites the endorsements upon the three notes of SOOO dollars each, as herein before stated; and recites that John M. Harvey, or John M. Harvey & Co. had in his or their possession a large quantity of iron which they claimed to applj’ to the discharge of their advancements to and liabilities for the Catawba Iron Works Company, and therefore it was proper that they should be postponed to the other sureties and creditors of the company. And it then conveys to certain trustees all the ^property,' real and personal, of the company, including the iron then in the possession of John M. Harvey & Co. or elsewhere, upon trust to take possession of the said property, and to sue for the same, if suit be necessary, either in their own names or in the name of the company. But that the company may direct the abandonment of any claim to an3T parcel of said property; and then that the trustees shall only proceed to institute suit for such parcel of property at the instance of any creditors of the company who may undertake to be responsible for the expenses and costs of such suit. The trustees are then directed to sell the property and collect the proceeds of sale; and out of these proceeds, first, to pa3r the expenses of executing the trust; second, to pay off any judgments against the company which may have been recovered before the execution of the deed; and in the third place, pay to the endorser on the aforesaid three notes, other than John M. Harvey and John M. Harvey & Co., any moneys that they had paid, or might be required to pay, on account of said endorsements, and to all other sureties of the companjr, other than John M. Harvey or John Ml Harvey & Co., all moneys which they had paid, or might pay, on account of their suretyships. The general creditors of the company, other than John M. Harvey and John M. Harvey & Co., were then provided for; and lastl3', Harvey and Harvey & Co.
    In 1841, William M’Donald and others filed their bill in the Circuit Superior Court of Botetourt, in which they stated that they were creditors of the Catawba Iron Works Company. That they had recovered judgments against the company, on which executions had been issued, and had been returned no effects. That when their debts were contracted the company had a large amount of iron on hand, which has been sold or removed from the premises; that much of this iron is still in Buchanan, and is claimed by John M. Harvey *& Co. That there was other personal property sold; and that these transactions were conducted under the superintendence of John M. Harvey, the president of the company. They say that during the pendency of their suits, and a few days before the term at which their judgments were obtained, the deed herein before mentioned was lodged with the clerk of the Count3r Cour-t of Botetourt to be recorded; the provisions of which deed they set out. And they state the execution of the deed by Thomas Samson, styling himself president of the C. I. W. Compan3v. “That John M. Harvey had acted as president of the company from its foundation they believe, and by what means he has been superseded by said Samson they are not informed.” They charge that said conveyance is fraudulent; and that it was made to delay and hinder creditors of the company, and especially the plaintiffs.
    
      The plaintiffs farther state in their bill that Samson is a surviving- partner of the late firm of David I. Burr & Co., and a member of the present firm, and as such is one of the creditors for whose benefit said conveyance was made: that all the creditors of the third class in said deed are members of the company ; and the fact of the indebtedness of the company to them was concealed from the plaintiffs.
    They farther charge that in the appointment of Thomas Samson, some such act as the conveyance executed, was contemplated; and that in making him president the action of the company was controlled by the stockholders for their own benefit, to the exclusion of other just and honest creditors. They deny the power of the stockholders to make such a conveyance, and if they have such a power, its exercise under the circumstances, they insist, operates fraudulently as to other creditors. They therefore charge, that the conveyance is fraudulent in law, and ought to be set aside as to creditors.
    *The plaintiffs then pray that the Catawba Iron Works Company, John M. Harvey, and John M. Harvey & Co., Peachy R. Grattan, ex’or of David I. Burr, John R. Triplett, the members of the late and present firm of David I. Burr & Co., and the trustees in the deed aforesaid, may be made defendants to the bill, and compelled to' answer the same on oath. That Harvey be compelled to exhibit an account of the iron manufactured whilst he was president, the sales made, and the amount on hand at the time he ceased to act as president; also, to state the income of the company from other sources, and its expenditures ; what propertj' was held by the company. Also to exhibit an account of his individual dealings, as well as the dealings of John M. Harvey & Co. with the company. And that he say whether he resigned his office of president, or was removed. That the creditors of the third class in the aforesa-id deed, state particularly the amount of their claims against the said company, and the foundation of the same. And they pray that the said deed of trust may be set aside as null and void as to creditors; that the property, or so much thereof as shall be necessary, may be sold for the satisfaction of their judgments; and in the mean time an injunction be granted them to restrain the trustees from proceeding to sell; and for general relief.
    The Catawba Iron Works Company answered the bill. They say : That ever since the organization of the company, almost all the stockholders, and all the directors, except the late president John M. Harvey, resided at a distance from the works of the company; and that neither the directors or the stockholders have known any thing of the operations of the company’s works, except as they received information from John M. Harvey: the business of the company was confided to his management. They state the making and endorsement of the three notes of SOOO dollars each, as ^hereinbefore mentioned, and that it was the money paid by the endorsers upon these notes, and which they are yet liable to pay, that is secured by the deed of trust in the third class of creditors. They say further, that it was the express understanding when these notes were endorsed by Harvejs Triplett and Burr, that the proceeds of the iron works were to be applied in the first place to their payment: that the money raised on these notes has been applied to carrying on the works of the company, and the whole proceeds thereof have gone to the payment of the creditors of the company. They deny that there was any effort by the company to conceal its indebtedness to the banks. They state the proceedings of the company in the execution of the deed; and they say, that as they could not admit the right of John M. Harvey to transfer from himself as president and agent of the company to himself as an individual, the property of the company, to be subject exclusively to his claims ; and as he would agree to no arrangement on the subject, it became necessary to secure the rights and interests of the company and its creditors, that the property of the company should be no longer under his control. Accordingly, at a general meeting of the stockholders on the 13th day of August 1840, and of which all the stockholders had notice, Thomas Samson was elected president of the company. They deny that there was fraud in the making the deed, or that it was intended to hinder and delay creditors. They say it is true Thomas Samson was a member of the late firm of David I. Burr & Co., and is a member of the present firm; and as such, is liable upon two of the notes before mentioned; but that liability was merely nominal, as David I. Burr had directed in his will, that his partners should be repaid out of his estate any moneys they might be required to pay on account of said endorsements; and that his executor had accordingly repaid to them all that they had been required to pay on that account. *'That it is also true that the creditors of the third class in the deed are stockholders in the Catawba Iron Works Company; but that although as such they might have had influence to secure themselves to the full of all demands which they had against the company, in preference to all other creditors, they, have not asked or obtained any thing more than it is believed to be universally admitted among mercantile men to be just and proper. This answer was sworn to by Thomas Samson as president of the company.
    Burr’s ex’or and Triplett answered, referring to and adopting the answer of the company. The members of the late and present firms of David I. Burr & Co. answered, saying that they were endorsers on the two notes of the company, but that David I. Burr, having directed by his will that they should be indemnified, they felt no personal interest in the subject. Harvey also answered, setting out his account against the company. He sajrs he did not resign the office of president, and that the first information he received of his being superseded in the office of president of the company, and of the execution of the deed, was from the deed itself, after it was recorded in the clerk’s office of Botetourt County Court.
    The cause came on to be heard on the 8th of September 1843, when the Judge delivered a written opinion, in which he held: In the first place, that the election of Samson could not be justified by the sections of the charter prescribing the regular mode of electing officers, because his election was not on the day fixed by the bylaws, in pursuance of the requirements of the charter. And in the second place: that it is not justified by the provision of the charter which authorizes the president and directors to call meetings to supply vacancies &c., because there was in fact no vacancy. In the third place, that he could not be regarded as president de facto even, because there was a president de jure, who had not resigned, and who could not be removed, *without at least, having had previous notice, and an opportunity to defend himself. And in the fourth place, that admitting him to have been president de facto, yet the execution of a deed was not such an act as he might lawfully perform, because not necessary to the existence of the corporation. And then assuming that if the seal of the corporation had been affixed to the deed by some third person making no pretension to be president, it would not have been the deed of the company, he declared the said deed to be null and void as to creditors ; and decreed that certain commissioners should proceed to sell the property and report their proceedings to the Court. After this decree was made John R. Triplett died, and the suit was revived in the name of his executor, and then Burr’s ex’or, and Triplett’s ex’or applied to this Court for an appeal, which was allowed.
    Michie, for the appellants.
    The bill does not question the regularity of the meeting at which Samson was elected president of the Catawba Iron Works Company ; nor does it expressly deny the power of that meeting to elect a president. That however is the ground on which the Judge below'bases his opinion. He seems to suppose that a day for the election of officers was fixed by the charter of the company. In this he is mistaken. The charter provides that the officers of the company shall be elected at a general meeting of the stockholders ; and that there shall be at least one general meeting in the year; but it fixes no day for that general meeting. The Judge fell into error by confounding general meetings with the regular meeting fixed by the by-laws to be held between the 15th of February and the 1st of March in each year. That was intended to be the annual general meeting as distinguished from general meetings called by the directors. But the by-law does not prescribe that the officers of the company are to be elected at that meeting. *7STor is there either by the charter or the bylaws any difference in the powers of the regular and special general meetings.
    In this company a president had been elected in 1837. By the charter he held his office for one year, and until his successor was appointed. In 1840 he had held through his year; and he was therefore a mere tenant at the will of the company, removable by the appointment of his successor.
    But if Samson was not legally elected, and this had been put in issue by the pleadings, it does not follow that the deed executed by him is void. In this case the company had directed the deed to be prepared. After it was prepared it was approved, and by a resolution of the meeting, Thomas Samson, president of the compan3r, was directed to execute it: and he does execute it. Samson being directed by name to execute the deed, the execution was valid, though he was not president. Angel & Ames on Corporations, p. 155, \ 5; 157, $ 7. The addition of president to Samson’s name would in that case be considered as a mere descriptio personae. IT. S. Bank v. Dan-dridge, 12 Wheat. R. 64; Bank of Columbia v. Patterson’s adm’r, 7 Cranch’s R. 299.
    Francis Anderson and Cooke, for the ap-pellees.
    The deed which is the subject of controversy in this case is void. 1st. Because a power is reserved by the grantor as incompatible with the grant. The deed provides that the company shall have power to direct the abandonment of any part of the property thereby conveyed. It is said in the answer of the company that this provision relates to the property claimed by John M. Harvey & Co. But the provision is general,.and will apply to all the property conveyed by the deed. And the grantor, after executing the deed, might have conveyed and given possession to a third party, and then directed the trustees to abandon the claim to it.
    *This provision would certainly be sufficient to avoid the deed, but for the addition authorizing creditors to sue in the name of the company. This however, is a mere restriction of the power of the grantor, and it is given upon terms which creditors might not-be able or willing to comply with. It is a privilege too which is not intended to be acted on by the preferred creditors; and yet if the other creditors sued and recovered, the property recovered would go to the satisfaction of these preferred creditors.
    2d. Because under the circumstances of this case it would be a fraud .upon the ap-pellees to allow the appellants to set up this deed to their prejudice.
    It is not intended to impute intentional fraud to the persons engaged in preparing this deed. But soon after this company was organized three notes for 5000 dollars each were made, which were endorsed by the stockholders of the company. These debts were allowed to stand and accumulate, whilst the acts and resolutions of the stockholders and directors in 1837, encouraged the idea that the company was exceedingly prosperous. 'At that time the president reports that they have six hundred and fifty tons of iron on hand, which will yield a handsome net profit. The directors resolve that their property has advanced SO per cent, in value, and recommend that a dividend to that amount be declared to be paid in stock; and the stockholders in general meeting adopt' the recommendation and increase the stock. And the very next thing we hear of this prosperous company is in August 1840, when it is insolvent, and makes the deed which is the subject of controversy in this case.
    It is true that bona fide preferences may be made by a debtor. But is this debt bona fide? Is it bona fide, after making the strong representations which they made in 1837 to the persons dealing with and crediting them, within three years to make this deed, taking from them *the whole property of the company, and applying it to the satisfaction of the bank or the endorsers? Especially was it bona fide, when these endorsers were stockholders ; through whose influence this deed was made; and through whose influence too these appellees trusted the company; and trusted upon the faith that the company would not diminish its property to their prejudice. But in fact this is not a case in which a debtor gives preferences among his creditors, but it is one in which a debtor prefers himself.
    3d. The deed is void, because the debts to secure which the deed was made are not binding on the company.
    The company had no authority to contract these debts. It was a loan on the promissory note of the company; and under the charter the company had no power to make such a contract. It has power to make contracts, but the general power must be restricted to the objects and purposes of the corporation. Angel & Ames on Corp. § 66, 192, 201; Story on Promissory Notes, § 74; 2 Kent’s Comm. 299. From these authorities it will be seen that a promissory note is void, and not binding on the company, unless an express power is given to make it, or it is a proper mode of performing its functions. In the charter of this company there is no express power to borrow money or make a note; and neither is a necessary incident to the function of making iron.
    Again. If this company may borrow money to the amount of half of its capital, it may equally borrow to any amount, and without any limit. But it is obvious the charter did not intend it should be a borrowing company. It provides that the company shall not be organized until 30,000 dollars is raised by subscription. The power to borrow money must be derived from the power to contract and be contracted with. There are certainly limits to this power. Borrowing money does not come appropriately under it; and it would have been easy to *authorize the company to borrow by an express provision of the charter, if it had been intended to give it this power.'
    4th. The deed is void, because it is not the deed of the corporation.
    It is not the deed of the corporation, because the meeting of the stockholders on the 13th of August 1840, was not a legally constituted meeting. The charter contemplates two kinds of meetings of the stockholders; a general and a special meeting. And it provides that there shall be at least one general meeting in the year, at such time as the by-laws shall prescribe: and the by-laws directed that this meeting should be held between the 15th of February and the 1st of March. The object was that the time of holding the annual meeting should be known to all the stockholders. The special meetings were to be called by the president and directors in the manner prescribed by the by-laws. The meeting at which this deed was directed to be prepared, was certainly not the annual general meeting. Nor does it appear to-have been called by the president and directors.
    The deed is not the deed of the company, because the execution of that deed was an act of the most vital importance to the company, and every stockholder should have had notice of the meeting, and been informed what business was to be transacted at it. Angel & Ames, p. 390, § 1, 393; The King v. Theodorick, 8 Fast’s R. 543; The King v. Gaborian, 11 East’s R. 86; 2. Kent’s Comm. 298-9. It is said that all the stock of the company, except Harvey’s, was represented, and that he had notice. But he had no notice that the company would then proceed to elect officers.
    The deed purports to be executed by Thomas Samson as president of the company. He was not the president, not having been duly elected. It is true, a corporation may affix a seal by its agent, but it may be done also by the president. The president has the custody *of the-seal, and may affix it. And in this. case Samson did not act as agent, but as. president. He was elected for the purpose, and he was directed to do it as president.
    A corporation cannot give authority to an agent to execute a deed except by deed. 2 Kent’s Comm. 614; Petersdorf’s Abr. 623, 62S; Anonymous, 12 Mod. R. 423; King v. Mayor, &c. of York, 4 T. R. 699; 1 Kydd. on Corp. 300-1; 1 Tuck. Comm. 156. A. different opinion is expressed by Angel & Ames, and the reason assigned is, that there-can be no one to affix the seal to the power. But the president is ex officio keeper of the seal, and as such may affix the seal to the power.
    It is obvious the order of the meeting to execute the deed was to the president; and the question is, was Samson the president. The charter says the president shall be elected for one year and until a successor is appointed. Harvey was elected in 1837, and there was no subsequent general meeting. There was therefore no vacancy, and there being no vacancy, there was no power to elect a president at a special meeting.
    But for the protection of the charter, these stockholders would have been liable for all the debts of the company. They contracted the debts. They managed the affairs of the company. They were- to receive the benefit of any profits made. They are therefore to be considered rather as principal debtors than sureties.
    Patton, for the appellants.
    The questions on which the decree of the Court below was founded, are coram non judice. And the principles on which the Court decided the cause have been yielded by one of the counsel for the appellees here, and have been faintly sustained by the other; whilst the grounds taken here would have been scouted by the Court below. The bill does not question the regularity of the proceedings of the company, and yet counsel come here to question them.
    *The Court below has erred by confounding the doctrines belonging to public corporations and private corporations. The doctrines relied on were adopted in relation to municipal corporations; and are, so far as they are now law, only applicable to such. The public were concerned in these corporations, and therefore the strictness required. It was in relation to such cases that the rules about the necessity of a seal, a precise charter day for elections, and about notice of the particular business to be done, were adopted.
    At this day there have arisen private joint stock companies, in which the officers are the mere agents of the stockholders, who have a right to control the whole business of the. corporation. The distinction between public and private corporations will be seen by reference to the case of The State v. Tudor, S Day’s R. 329; and the opinion of Judge Story, in the Dartmouth College Case, 4 Wheat. R. 668. This distinction between the corporations renders the rules applicable to each entirely different. These private corporations may contract with their corporators; Dartmouth College Case, supra; Wardsworth on Joint Stock Co’s. 39 Law Libr. p. 14, IS; and are only subject to such restraints as the charter prescribes: and within these limits, the corporators have a right to do as they please.
    It is said the corporation cannot act without a seal. It is true there are some old cases that assert this doctrine. But it is absurd. Upon this principle, no agent can be appointed to affix the seal. Gentlemen, to obviate this objection, tell us that the. president is ex officio keeper of the seal, and is ex officio authorized to affix it. But this is a mere assumption, without authority to sustain it. And we are express^ told that the president has no authority ex officio to transfer the effects of the corpora- | tion. Angel & Ames on Corp. 243. He is not the head of the corporation, but merely the presiding officer of the directors; and no more than a cashier of % bank, has he any. other authority but what is expressly or impliedly given. Especially in such acts as this of conve3'ing the property of the corporation, the president can have no authority to do it, unless expressly authorized by the company. He then acts by a special power; and any other person authorized by the corporation has the same power; and the affixing the seal is a mere ministerial act. Angel & Ames, p. 246, 1S3.
    If the president only can affix the seal, Samson was quoad hoc president de facto.-The argument of the Judge below is based upon the idea that there cannot be a president de jure and a president de facto at the same time. And yet, any of the cases cited will shew that the controversies are between persons claiming title to the office: and though the charter directs the mode of election, and an election not legally made is voidable, yet the party elected is an officer de facto. Obrian v. Knivan, Croke Jac. 552; Harris v. Jays, Croke Eliz. 699; Angel & Ames 81, 224-6.
    But Harvey was not president de jure after the election of Samson. Even in municipal corporations, though officers who are of the essence of the corporation are not amovable at pleasure, yet mere ministerial officers are. Angel & Ames 358. In private corporations, all the officers are mere agents, and are removable like every mere agent of a cotton or iron factory. And notice of an intention to remove an officer, is a determination of his office. Rex v. Richardson, 1 Burr. R. 517; Rex v. Mayor of Canterbury; 1 Stra. R. 674.
    It’is said by the Court below that the company had no right to make an election when it was done; and he supposes that a regular meeting, spoken of in the by-laws of the company, means general meeting. This is a mistake. A called meeting of all the stockholders is a general meeting. The words “its general meeting’’ in the charter, means its first general meeting. If the first officers elected in July 1834, were lawfully elected, *then, according to the argument, the election of Harvey in Eebruary 1837 was not legal; because after the election in July 1834, he was entitled to hold for one year; and no successor being then elected, he was entitled to hold another year, and so on until an election in July. But though the general annual meeting shall be fixed, it authorizes the president ' and directors to call special general meetings; and neither the charter or the by-laws requires the election of officers to be at the annual meetings. But the fact that the president is to hold until his successor is appointed, implies that the stockholders have authority to elect a successor at any time after the year has expired.
    It is said the meeting at which Samson was elected was not regularly called. If this was true, a third party cannot raise the question. The Chester Glass Co. v. Dewey, 16 Mass. R. 102. But it is not shewn that the meeting- was not regularly called. The party setting up the irregularity must prove it. The Court will not presume it. Wads-worth on Joint Stock Co’s. 39 Daw Dibr. 1S3-54. And in this case the bill does not controvert the regularity of the proceedings.
    It is argued that this deed is void because its provisions are repugnant. If there be such repugnancy it can only apply to the iron in the possession of Harvey; and the only effect can be that the repugnant provision is void. Riddick v. Cohoon, 4 Rand. 547.
    It is farther argued that the company had no right to borrow money. Of course no man can contend for the general proposition that a corporation cannot borrow money. And when you say they may borrow, you of necessity refer the amount to be borrowed to the discretion of the corporation.
    The only question made by the pleadings is fraud in the execution of the deed by the company. Is there fraud in the fact that they did not proclaim to every body that the company was in debt? though the concealment *is expressly denied by the answer. Is there fraud in giving preference to the stockholders who were sureties? though they are put on the same footing with other sureties. Gentlemen say that though-there was no intentional fraud, the president had said in 1837 the company was prosperous; and that the directors and stockholders adopted resolutions estimating the increased value of their property at fifty per cent. Is it proved that it was not true; or that they did not believe it? It is only necessary to remember that January 1837 was the day of inflation; that August 1840 was the day of extreme depression.
    
      
      Corporations — Officers—In Smith v. Cornelius, 41 W. Va. 68, 23 S. E. Rep. 601, it is said : “ Directors are only agents of the corporation to conduct its business, and not the corporation, and, as such, have not a shadow of interest in its property, and need not be stockholders, unless statute or by-law so requires, and cannot act individually, as they have no inherent power as agents, but only collectively as a board. Pennsylvania Lightning-Rod Co. v. Board of Education, 20 W. Va. 360. They are but officers ‘ representing the interests of that abstract legal entity, the corporation, and those who own shares of its stock.’ Addison v. Lewis, 75 Va. 703; Burr v. McDonald, 3 Gratt. 315.”
    
    
      
      Same — Same—Removal.—If the officer be a ministerial one, holding during pleasure, he may generally be removed without notice or trial, and he is in fact removed upon tbe appointment of a successor ; but if he holds during good behavior, or for a fixed term, he can only be removed after summons. Richards v. Town of Clarksburg, 30 W. Va. 501, 4 S. E. Rep. 780, citing Burr v. McDonald, 3 Gratt. 215.
    
    
      
      Same — Deed—Execution.—A deed oí a corporation executed by the president under the seal of the corporation, is a valid mode of executing it. Merchants' Bank y. Goddin, 76 Va. 506, citing principal case.
    
    
      
       Same — Deeds of Trust — Preference of Creditors.— On this snbj ect see the principal case cited in Lamb v. Daughlin, 25 W. Va. 304. 322 ; Hope v. Salt Co., 25 W. Va. 806 ; Pyles v. Furniture Co., 30 W. Va. 135, 140, 2 S. E. Rep. 916, 919 ; Sweeney v. Grape Sugar Co.. 30 W. Va. 454, 4 S. E. Rep. 437. See monographic note on “ Corporations ” appended to Slaughter v. Com., 13 Gratt. 767; monographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348.
    
   ADDE7N, J.,

delivered the opinion of the ■Court.

The Court is of opinion, that as by the bill and pleadings in the cause no issue was made up as to the regular execution of the ■deed of trust in the proceedings mentioned, the question as to the regularity of the election of Thomas Samson as president of the ■company, and his authority to execute the deed, did not properly arise. But as the decree of the Court below has been rendered upon the assumptions that the election of said Samson was illegal, and that there was no authority to execute the deed, this Court is of opinion, that as this was a joint stock company, incorporated for private purposes and to acquire property, it possesses the ordinary powers and privileges of other trading companies, while confined and limited within the scope, and directed to the object of their association; except so far as the same are restricted by the charter of incorporation. That their officers possess no private franchise in their offices, but are the mere ministerial agents of the company, to conduct its business for the benefit, and under the authority of the company; that although by the charter a general meeting of the company was to be held at least once annually at such time and place as should be prescribed by the bylaws, there is nothing to restrict *the company from holding other general meetings as often as the interests of the company rendered it necessary, and at such general meetings to remove and appoint officers if the welfare of the company required it; otherwise if the officers appointed should prove to be incompetent or faithless, the company might be subjected to irreparable loss.

The Court is further of opinion, that as by the charter the officers elected were to hold their offices for one year, and until successors were appointed, even if the authority to remove within the year were more doubtful, yet when as in this case, no election had been held after the expiration of the year, and the president held over, it was clearly competent for the company at any general meeting to elect a successor, as there is nothing in the charter which indicates the intention that where an officer held over in consequence of a failure to elect a successor at the annual general meeting, he should hold over for a year, and until the next ensuing general annual meeting.

The Court is further of opinion, that even if the election of Samson had been irregular; yet such election would have constituted him president de facto, and his acts done under the authority of the company and colore officii, would be binding on the company, and could not be impeached by strangers on the ground of want of authority-

The Court is further of opinion, that it was competent for the company to execute the deed in question by any agent duly empowered and authorized to do the act, and that as it appears the deed was prepared in pursuance of the direction of the company, and that the same after being so prepared, was seen and approved by the company in general meeting, and the said Samson, the president of the company, was instructed and directed to execute the same by the resolution of the company adopted in general meeting, these proceedings constituted *him special agent with full authority to do the act in question. The Court is therefore of opinion, that the objection to the deed from the presumed want of authority in said Samson to execute it cannot be sustained.

The Court is further of opinion, tha there is no repugnancy in the terms of th deed, and nothing illegal in the preference thereby given, if in other respects the deed be free from objection, as the act of February 13th, 1837, Sessions Acts, ch. 84, § 17, p. 79, prohibiting such preferences, does not apply to this corporation.

The Court is further of opinion, that there was nothing in the scope and object of the corporation to prohibit it from contracting debts or borrowing money to carry on their operations.

The Court is further of opinion, that as a corporation may contract debts to its individual corporators, it is as much bound to pay or secure such debts as debts due to strangers, and the fact that a deed is given to secure siich debts does not render it fraudulent, unless some fraudulent intent is shewn.

The Court is further of opinion, that the facts and circumstances attending the execution of the deed in question repel the slightest imputation of fraud. So far as any preference was given to the individual corporators it was to refund to them advances made and liabilities incurred for the payment of loans contracted to enable the company to commence its operations. The proceeds of said loans have gone to the increase of the means of the company to meet its general liabilities, and as by the embarrassments of the company the stockholders may probably be subjected to the loss of their capital stock, there is nothing unjust or inequitable in securing such of them as had become liable for such loans, or who had made advances to discharge the same; leaving the residue of the estate of the company, increased as it may have been by such loans, to be distributed *pro rata amongst the general creditors, after discharging the prior in-cumbrances and the loans and advances on account thereof as aforesaid.

The Court is therefore of opinion, that the Circuit Court erred in setting aside said deed, as void. The decree is therefore reversed with costs; and the cause remanded, with instructions to proceed to make sale of the property, and for a disposition of the proceeds according to the terms of the deed of trust; and to enable the parties to mature the case as against John M. Harvey, if deemed advisable, and for further proceedings in order to a final decree.  