
    James Goodin et al. v. Jason Evans et al.
    Previous to the passage of the general railroad act of February 11,1848, a railroad company was chartered by a special act of the legislature, empowering the directors to transact all the business of the company, but did not expressly authorize subscriptions to the capital stock in real estate. This privilege was conferred by the 14th section of the act of 1848, upon all railroad corporations then existing that might accept the power so conferred. After the passage of that act, the directors entered on the records of the company a resolution that subscriptions to the capital stock might be made in real estate. The company then received real estate subscriptions to its stock, and sold and conveyed the same to bona fide purchasers, with the knowledge of such subscribers, and without objection on their part, until many years after, when the stock had become worthless, and the enterprise for which the company was organized had been abandoned. Held, that, in a suit by a subscriber against a vendee of the company, to recover back the land conveyed by him to the company on such subscription, proof of the exercise of the privileges conferred in the 14th section of the act of 1848, by the company, under a resolution of the directors, and with the acquiescence of the parties to the suit, was sufficient evidence, as between them, of the acceptance of the powers conferred in that section, and that the company was thereby authorized to take and convey land received on subscription to its capital stock.
    Error to tbe court of common pleas of Hamilton county. Be-served in the district court.
    The original action was brought November 16,1864, in the court nf common pleas of Hamilton county, by James Goodin and Samnel H. Goodin against Jason Evans and Briggs Swift, for the recovery of certain real estate, situate at the northwest corner of Court and Main streets, in the city of Cincinnati; and also for the rents and profits of said property while wrongfully held by defendants.
    The answer denies the plaintiffs’ legal estate in the property, and denies that defendants have wrongfully detained the same from the-plaintiffs’ possession; and admits the occupation of the premises by defendants, from January 1, 1855, to July 31,1863, when defendant 151] Swift conveyed his interest ^therein to the defendant Evans,, who has ever since been in the possession and enjoyment of said property. The answer sets up no equitable defense, nor any claim that defendants were innocent purchasers without notice.
    The bill of exceptions discloses all the evidence given on each side, and all the proceedings in the court on the trial, and is as follows, to wit:
    “ Be it remembered, that on the trial of this case, neither party requiring a jury, the case was submitted to the court, and the following evidence was introduced, to wit:
    “ On the part of the plaintiffs, James Goodin, one of the plaintiffs, having been called, testified as follows : That the plaintiffs acquired their right to the property or real estate in the petition described, by a conveyance from the Bank of the United States, in 1828 or 1829, for a part of it, and for the balance of it by a conveyance from the same party in 1829 or 1830.’ The counsel for the defendants here admitted that plaintiffs had acquired the title to* the premises by the conveyances mentioned, and waived the introduction of the deeds. And the witness further testified : ‘ That he and his brother, Samuel H. Goodin, the other plaintiff in the case, went into full possession of said property under said conveyances in 1829 or 1830, and occupied the same as their own property for more than twenty-one years. About the year 1853, the said property rented for eight thousand four hundred dollars a year. From the year 1854 down to the present time, the rent of the property has-been worth on an average about eight thousand dollars a year.’ Plaintiffs here rested.
    “ Whereupon, the defendants offered in evidence a duly certified copy of the deed of plaintiffs to the Dayton and Cincinnati Railroad Company, dated March 19, 1853, for said property, which is-hereto attached, made a part of this bill of exceptions, and, for identity, marked ‘A.’ Also, defendants offered in evidence, a duly certified copy of the deed of said railroad company for said property to defendants, dated the 28th of December, 1854, which is-likewise hereto attached, made a part of this bill of exceptions, and, for identity, marked ‘ B.’ -To the competency of these deeds as evidence the plaintiffs objected, but the court overruled the objection and admitted *the evidence, and plaintiffs excepted to [152 this ruling of the court.
    “ The defendants having rested, the plaintiffs called James Goodinto the stand, and offered evidence showing that the plaintiffs had,' about the 13th day of October, 1852, subscribed a paper claimed to-be a subscription to the capital stock of said railroad company, in words and figures as follows, to wit:
    “¥e do hereby subscribe to the capital stock of the Dayton and' Cincinnati Railroad Company, two thousand shares of stock (at $50 per share), to be paid for by a transfer of the property we own on the northwest corner of Main and Court streets, and valued by N. W. Thomas and Judge Torrence, at one hundred thousand dollars, clear of all incumbrances.”
    “ And also plaintiffs offered evidence showing that the said deed of plaintiffs to said railroad company was given in consideration of the said subscription of stock, as its only consideration ; that certificates of stock on said subscription had issued to plaintiffs to the-amount of seventy-five thousand dollars, twenty-five thousand dollars of the amount subscribed having been retained by the company as security for an- incumbrance on the property of some twelve-thousand dollars, which was afterward settled by the company; but the plaintiffs having individual claims against the company as-yet unadjusted, no certificate for this balance of the hundred thousand dollars of the stock subscription has ever issued to the plaint-tiffs, or either of them. To all this evidence the defendants, by their counsel, objected, but the court received the evidence subject-to the objection, and reserving the question of the objection for future consideration on the trial.
    “ Plaintiffs also, subject to the same objection of defendants, gave evidence proving that at the time the said alleged subscription of stock by plaintiffs was made, and also at the time of the execution, and delivery of each of the said two deeds introduced as evidence -on the part of the defense, the defendant, Evans, was a director ins the said railroad company, and acting as such.
    
      “ It also was shown, by the minutes of the proceedings of the -company, that the plaintiff, Samuel H. Goodin, was a director in said 158] railroad company at the time said alleged subscription *of stock was made, and also at the time plaintiffs’ said deed to the company was executed and delivered, but he was not a director of the ■company at the time of the execution and delivery of the said deed by the railroad company to the defendants.
    “ It further appeared from the minutes of the proceedings of the said company, that the directors of the company adopted,- at a regular meeting of the board, on the 25th day of March, in the year 1852, a resolution as follows, to wit:
    “ On motion, it was resolved, that subscriptions to the capital stock may be made in real estate along the line of the proposed route, provided that the value of the same shall be ascertained by the appraisement of three disinterested persons, one to be chosen by the subscribers, one by the company, and a third to be chosen by those two, who shall make their award in writing, and who shall estimate the value of the property at its cash value.
    “ The witness, James Goodin, further testified, subject to -the same -objection on the part of the defendants, that he is at this time a director in the said Dayton & Cincinnati Railroad Company, and has had a knowledge of the proceedings of the company since it was first started; but that he was not a director or officer in said company, either at the time the said alleged subscription of stock was made by plaintiffs, or at the time of the execution and delivery -of either the said deed of plaintiffs to the railroad company, or the deed of the railroad company to the defendants.
    “ The 'witness, James Goodin, further testified, that the books presented to him here in open court contain all the minutes or journals of the proceedings of the directors of said corporation; and that the said minutes or journals show no formal act, either of the stockholders or of the directors of said company, accepting or signifying their acceptance of any of the provisions of the railroad act of February 11, 1848, regulating railroad companies. And further witness states, that the said company never did, either by its directors or by its stockholders, formally, or by any express act, accept any of the provisions of the said general railroad law of the 11th February, 1848, so far as he knew or ever heard of; and that the 154] *said real estate in controversy in the petition described is not situate along the line of the route of the railroad of said cornpany, nor at the terminus of the line of the said road ; the witness also testified that the pamphlet here exhibited to witness, purporting to contain the charter of the said railroad company (and which-is hereto attached, made a part of this bill of exceptions, and marked C) was printed by the authority of the board of directors of. said company in 1852, in order to furnish the agents and officers of the company, in a convenient form, the original charter and amendments thereto of said company; and this pamphlet contains all the provisions and amendments of the charter of the company, ever recognized, so far as witness has ever known or heard of; also, that plaintiffs still hold the certificates of stock of said company for the-said seventy-five thousand dollars issued to them, as aforesaid, on said subscription of real estate; and that on the 17th day of January, 1866, plaintiffs tendered a delivery back to said company of the said stock, but the president of the company refused to receive the same; and that thereupon plaintiffs filed, with the clerk of the court, in this case, the said certificates of stock with a transfer thereof back to said company.
    “ That the said company has failed to carry out its enterprise, and has abandoned the construction of its line of railway from Dayton-to Cincinnati, and sold out a part of its right of way to another' company.
    “ The said railroad company was originally organized in the year 1848, and reorganized in 1852. The amount of the subscriptions to the capital stock of the company, prior to October 13, 1852, was-about seven hundred and sixty thousand dollars.
    “ On being recalled and interrogated by the court, the witness-testified that there were but three subscriptions of stock in real estate. That of the plaintiffs aforesaid was the first. John W. Coleman, of the Waverly House, on Main street, in Cincinnati, made a subscription in real estate for fifty thousand dollars; and' George Hatch subscribed fifty thousand dollars, the validity of which was contested in court, and finally compromised.
    *“ The witness further testified on the trial that the defend- [155 - ants had notice of the consideration and attending circumstances under which plaintiffs had made the said deed for the property in controversy to the said company at the time the same took place.'
    “ The defendants objected to all the testimony given on the part" of the plaintiffs as rebutting evidence; but. the court admitted the' testimony, subject to the objection.
    
      “ The foregoing was all the evidence on both sides given on the trial, of this cause; and after hearing the arguments of counsel, and on full consideration, the court found in favor of the defendants, and that the plaintifis were not entitled to recover against the defendants. Whereupon the plaintiffs filed a motion for a new trial upon the grounds specified in the motion in the case; but the court, on hearing, overruled the motion for a new trial, and rendered judgment for the defendants. And thereupon the plaintiffs, by their counsel, excepted to the rulings of the court in overruling the motion for a new tidal and rendering the judgment herein, and prayed the court to sign and seal this bill of exceptions, which is •done accordingly.”
    The plaintiffs filed their petition in error in the district court, .assigning for error that the common pleas erred in ruling in favor of, and in rendering judgment for, the defendants. The case was reserved in the district court for decision here.
    
      T. W. Bartley (with whom was Follett), for plaintiffs in error:
    The defendants received their conveyance from the railroad company with notice of the facts upon which the plaintiffs seek to avoid it. And the defendant Evans, who, from the beginning to the end, filled the fiduciary capacity of director in the company, and was therefore inhibited by law from trafficking or speculating in the property of his cestui que trust, now holds and claims to own the •entire interest in the property in his own right. So that the defense can stand on no better foundation than it could if the company wore the sole defendant, and had not conveyed to Evans and Swift.
    
      The defense set up in the answer presents no equitable grounds for 156] *the consideration of the court under its equity or chancery jurisdiction, but rests solely on the strict technical rules of the common law.
    The question involved is not merely that of the validity or invalidity of the stock subscription and of the deed of conveyance, but also that of the capacity or incapacity of the corporation to do things which the law of its franchise had not authorized.
    The plaintiffs rely upon two distinct grounds for recovery, either of which was sufficient to entitle them to a judgment in the court below, to wit:
    1. The company not being authorized to take subscriptions to its capital stock in real estate; such a subscription to its capital would not only be void, but a fraud upon the law of its franchise, and its results, a fraud upon the stockholders who had subscribed and paid up their stock in money.
    The special provisions of the charter of this company required the subscriptions to the capital to he-payable in money. It appears that subscriptions to the capital stock of all corporations are required to be paid in money, except in cases where special and express provision is made in a law authorizing payment to be made in other kinds of property. King v. Elliott, 5 S. & M. 428; Ang. & Ames on Corp. (8 ed.), sec. 147; 1 Redfield on Railways, 207 ; Henry et al. v. Vermillion and Ashland R. R. Co. et al., 17 Ohio, 191; 2 Kent Com. 360-362; Head and Amory v. The Providence Ins. Co., 2 Cranch, 167; 4 Wheat. 636; 4 Pet. 163; 13 Pet. 587; 14 Pet. 122 ; 12 Wheat. 68 ; 5 Seld. 444 ; 27 Penn. 339 ; 5 McLean, 194; 9 How. 172 ; 23 Ill. 579 ; Ang. & Ames; Grant on Corp.; Kidd on Corp.; The Bank of Chillicothe v. Swayne et el., 8 Ohio, 286 ; 15 Johns. 358 ; 5 Conn. 560 ; 3 Pick. 232.
    2. The company was not authorized by law to deal or speculate in real estate generally, and had no capacity to receive a conveyance of real estate, except in, cases where incident to, or necessary for, the purposes or objects of the corporation. Sec. 1 of the Charter.
    The bill of exceptions shows the fact that this real estate in question does not lie along tlm line of the company’s railroad, *nor at either terminus of it; so that it can not be needed [157 nor used for the track or way of the railroad, nor for depot purposes. And the defendants did not attempt to show on the trial that it was necessary for the use of the company, or in any way a convenience or incident to the business purposes of the company.
    See Ang. & Ames on Corp. 84, 233; The Penn., etc., Co. v. Dandridge, 8 Gill & Johns. 248; The Chillieothe Bank v. Swayne et al., 8 Ohio, 257; Creed v. Commercial Bank of Cincinnati, 11 Ohio, 489; Same v. Reed, 498; Spaulding v. The Bank of Muskingum, 12 Ohio, 544; Redf. on Railways, 117; Ex parte Johnson, 31 Eng. L. & E. 430; Solomons v. Laing, 6 Railway Cases, 289.
    To overcome the difficulty of a want of legal capacity or authority in the company to take the conveyance, the act regulating railroad companies, of February 11, 1848,"is referred to and relied on in the defense.
    This act does provide for and confer, in section 14, the legal capacity for a corporation acting under it to “ acquire by purchase or gift any lands in the vicinity of its road, or- through which it may pass, so< far as may be deemed convenient or necessary by the company to-secure the right of way, or such as may be granted to aid in the construction of the road, or be given by way of subscription to the capital stock; and the same to hold or convey in such manner as the directors may prescribe,” etc. It will wot be controverted that if this-act did apply t'o this company, it conferred the requisite legal capacity ; and the very fact of the necessity of such authority to create the corporate capacity to acquire, hold, and convey lands,- “given by way of subscription to the capital stock,” etc., shows that in the absence of such authority such corporate capacity could not exist.
    Did the Dayton and Cincinnati Railroad Company acquire the power and authority conferred by this law? The law, by its express-terms, did not apply to existing corporations under special charters; but section 14 might become applicable by actual -acceptance by the-company.
    
    This act, when accepted, made fundamental alterations in the-original franchise of the company. Such change, affecting the obli 158] gations and terms of the contracts of the stock ^subscriptions, creates the necessity, upon both principle and reason, for tho assent of the stockholders. Such is the effect of all the authorities, both. English and American. Colman v. Eastern Counties Railway Co., 4 Railway Cases, 513; 19 Eng. L. & E. 350; Marlborough Manuf. Co. v. Smith, 2 Conn. 579. See also Redfield on Railways, 400, and the numerous cases cited in his notes; 1 Ib. 193; Ib. 69, sec. 10; Ib. 70, sec. 19; 2 Ib. 479, and cases cited; 1 N. H. 44; Ang. & Ames on Corp., sec. 81; King v. Passmore, 3 Term, 240; Bailey v. Mayor of New York, 3 Hill, 581; Ellis v. Marshall, 2 Mass. 269; Green v. Seymour, 3 Sand. Ch. 285. The board of directors were not authorized to make or accept changes in their authority as an agent or board of trustees. It is not claimed that any acceptance by the stockholders in this company ever occurred.
    Suppose, however, that the board of directors had the authority to accept legislative alterations in the fundamental terms of tho franchise, and even that such acceptance could be proven by circumstantial evidence, how stands this case upon the facts before the court? Not only is the proof from tho circumstantial testimony wholly insufficient, but its preponderance is clearly to the contrary. To say that the act of taking the subscription of stock in real estate was per se or ipso facto an acceptance of the fundamental change in. the franchise, is to beg the question. The acceptance is essential as-a condition precedent to the capacity to take the subscription. The-capacity to do the act must be first acquired, before the act can be-attempted to be done.
    But it is shown both by circumstances and by positive proof, that, the company had not accepted the provisions of the act of 1848.
    It is insisted in the defense that the plaintiffs are estopped from-showing the actual and true consideration upon which the conveyance to the company was made. The deed expresses a consideration of “one hundred thousand dollars” paid, the receipt whereof is acknowledged: but how the payment was made, whether in money, or bank bills, or in other property estimated at one hundred thousand dollars in value, does not appear. The exchangeable value of all kinds *of property is estimated and expressed in dollars [159 and cents. And when the consideration expressed in a deed is a-given number “ of dollars,” without saying in money, it is not contradicting the recital of the deed very strangely to 'show that it was-so many dollars in current bank-notes; or in any other kind of property estimated and received at the same number of dollars in value. Note 490 of Cowen & Hill to Phillips on Evidence; Baker v. Dewey, 1 Barn. & Cress. 704; Garrett v. Stewart, 1 McCord, 514; Morse v. Shattuck, 4 N. H. 229; Leland v. Stone, 10 Mass. 459; Belden v. Seymour, 8 Conn. 304; Jackson ex dem. Rounds v. McChesney, 7 Cowen. 360; Oneal v. Lodge, 3 Har. & McHen. 433 ; 3 Serg. & Rawle, 355; Ib. 564, 670; 7 Ib. 309; 17 Mass. 259 ; 14 Johns. 210; 20 Ib. 338; Steele v. Worthington, 2 Ohio, 182; Swisher v. Swisher’s Adm’r, Wright, 755; Lessee of Mitchell v. Ryan, 3 Ohio St. 378; Miller v. Stokely, 5 Ohio St. 195; Meeker v. Meeker, 16 Conn. 383; Beech v. Packard, 10 Vt. 86; Emmons v. Littlefield, 1 Shep. 233; Moore v. McKie, 5 Smedes & Marsh. 238; Byers v. Mullen, 9 Watts, 266; Myers v. Peeks, 2 Ala. 648; Johnson v. Taylor, 4 Dev. 555 ; Robbins v. Love, 3 Hawks, 82; Lazell v. Lazell, 12 Vt. 443; Wolfe v. Hauer, 1 Gill, 84; Herbert v. Scofield, 1 Stock. (N. J.) 492; Glenn v. Grover, 3 Md. 212; Wooden v. Shotwell, 3 Zabr. 465, and 4 Zabr. —; Exchange & Banking Co. of New Orleans, 3 Robinson (La.), 307; 4 Smedes & Marsh. 75.
    And in all cases, a party has been allowed to impeach his deed for want of due execution or delivery, or want of legal capacity, either as a grantor or grantee, “in order to neqate the idea of its 
      
      being his deed,” in the expressive language of Mr. Justice Woodworth in Champion v. White, 5 Cowen, 510.
    To the point, that a party may show a want of legal capacity or authority in one of the essential parties to a deed, the decisions are numerous and consistent. Dale v. Roosevelt, 9 Cowen, 310 ; Johnson v. Milne, 14 Wend. 198; Millinson v. Howell, Cam. & Norw. 499; Webster v. Woodford, 3 Day, 90; Grant v. Thompson, 4 Conn. 203; Mitchell v. Kingman, 5 Pick. 431; Rice v. Peat, 15 Johns. 503; Den v. Clark, 5 Halst. 217; 2 Kent’s Com. 450, et seq.; Jackson ex dem. Caldwell v. King, 4 Cowen, 207. The cases bear-160] ing on this point apply *to contracts for conveyances fully executed as well as such as are executory merely. And in a number of cases this principle has been applied in case of a corporation as grantee. The Penn., etc., Co. v. Dandridge, 8 Gill & Johns. (Md.) 248; The Bank of Chillicothe v. Swayne et al., 8 Ohio, 257; Creed v. Commercial Bank of Cincinnati, 11 Ohio, 489; Ang. & Ames on Corp. ch. 8, sec. 12, p. 233.
    The case of Com. ex rel. Clagham et al. v. Cullen et al., 13 Penn. St. 133, covers, as I think, this case, and I desire to call the especial .attention of the court to that case and the authorities therein cited.
    
      J. D. Cox, also for plaintiffs in error:
    1. The bill of exceptions shows that the defendants are purchasers with notice, and no question is made on that point by their •counsel. We are left to consider it as if the railroad company were .itself the defendant in form.
    The defendant, Evans, was not only a purchaser with notice, but was a director and a member of the executive committee of the board.
    In his purchase of the property he was a trustee, dealing in the trust fund, and trying to turn the same to his own profit. See 1 Story’s Eq. Jur. 310, 311, secs. 321, 322.
    2. The plaintiffs are not estopped by the recital of the consideration and its receipt in the deed. 1 Greenl. Ev. 99, 26, and note and cases cited; McCrea v. Purmort et al., 16 Wend. 460; Morse v. Shattuck, 4 N. H. 229; Belden v. Seymour, 8 Conn. 304; Whitbeck v. Whitbeck, 9 Cowen, 266; Steele v. Worthington, 2 Ohio, 350; Bryce v. Myers, 5 Ohio, 121; Burrage’s Lessee v. Beardsley, 16 Ohio, 438; Lessee of Mitchell v. Ryan, 3 Ohio St. 388.
    3. The railroad company had no power to make such a contract as that on which the deed was given, and being entirely ultra vires,' it is a void act, and the deed is of no effect:
    (1.) Because the company had no power to buy or hold land, except for the purposes of the railroad itself and itp necessary station-houses, offices, etc. 2 Kent’s Com. 299 (old paging) ; 1 Parsons on Contr. 141; Ang. & Ames on Corp. 86, sec. 111 ; 234, sec. 256; 116, sec. 149; Beaty v. Knowles, 4 Pet. 162; *Gage v. New Market R. R. Co., 14 E. L. & E. 57; [161 Preston v. Liverpool R. R. Co., 5 H. L. Cases, 605; 1 Redfield on Railways, 207, 248; Dean v. Sullivan Railway, 2 Foster, 316; U. S. v. Harris, 1 Sumner, 21; Rathbone v. Tioga Nav. Co., 2 Watts & Serg. 47; Gallia Co. Comm’rs v. Holcomb, 7 Ohio, 232; Bank of Chillicothe v. Swayne, 8 Ohio, 257; Ohio v. Granville Alexandrian Soc’y, 10 Ohio, 1; Ohio v. Washington Social Library Co., 11 Ohio, 96; Bartholomew v. Bentley, 1 Ohio St. 37; Strauss v. Eagle Ins. Co., 5 Ohio St. 59; White’s Bank v. Toledo Ins. Co., 12 Ohio St. 601; Henry et al. v. Vermillion and Ashland Railroad Co., 17 Ohio, 187.
    (2.) Because the railroad company had no power to receive subscriptions in land. Such power is not included in the capacity to take and hold real estate. See authorities above referred to; also Eunyan v. Coster’s Lessee, 14 Pet. 122, 129; Bank of Augusta v. Earl, 13 Pet. 587. The power is not granted by its charter, and under that organic act of its organization it could not have it. The fact that the act of 1848 was passed proves that the power did not ■exist before.
    It was not granted by subsequent law, for the act of February 11, 1848 (S. & C. 271, note 1), was not accepted by them.
    Presumptive acceptance of that law is rebutted by the proof. 1 Greenl. Ev., secs. 20, 40.
    The assent to the acceptance of the statute of 1848 needed to be formal, so as to specify the sections accepted; and it must be made by the stockholders, and not by the directors, because the change affected the organic law of the corporation, and operated as a modification of its charter. 1 Parsons on Contr. 142, and in note; Attorney-General v. Davy, 2 Atk. 212; St. Mary’s Ch. Case, 7 Serg. & Rawle, 517, quoted in note to Parsons, Ib. See also 1 Redfield on Railways, 69 ; Winsor ex parte, 3 Story, 411, Angell & Ames, secs. 81-83, 297, 547; Hudson v. Carman, 41 Me. 84. The corporators themselves must assent to the change. Angell & Ames, secs. 536, 537, etc.
    
      (3.) But if the act of 1848 had been duly accepted, still the authority would not extend to the purchase of lands or receiving-162] *tkem on subscription, unless the same were “in the vicinity of said.road, or through which the same may pass.”
    (4.) Where an act is contrary to public policy, even a particepscriminis may attack it. 1 Story’s Eq. 284, etc.; Story’s Eq. Jur., sec. 695. But we deny that plaintiffs are particeps criminis, as they were only sufferers by an attempt of the corporation to do that which it had absolutely no power to do, and which was, therefore, void.
    
      Wm. M. Ramsey, for defendants in error:
    1. A grantor is estopped by the recital of a valid consideration in his deed, and will not be permitted to prove a wholly different consideration, illegal in its character, for the purpose of defeating the conveyance. 1 Greenl. Ev. 26, note and authorities cited ; 4-2. Phill. Ev. 585, note and authorities cited; Morse v. Shattuck, 4 N. H. 229; Belden v. Seymour, 8 Conn. 304; Wilt v. Franklin, 1 Binn. 502; Wilkinson v. Scott, 17 Mass. 249; Goodspeed v. Fuller, 46 Me. 141; Dale v. Evans, 14 Ind. 288.
    But it is said that this deed can not work an estoppel, because the contract was beyond the power of the railroad company, and therefore void. If the grantee had no legal, existence, the deed would be void. But there is no denial of the existence of the Dayton and Cincinnati Railroad Company, nor of its corporate capacity to both take and hold real estate. The only question made is upon the consideration paid, which, in any event, is a question which,can only be raised by the stockholders.
    2. An executed contract will not be disturbed at the suit of a private individual, much less of a party to it, on the ground that it was ultra vires. Leasure v. Hillegas, 7 Serg. & Rawle, 319; 3 Randall, 136; 4 Johns. Ch. 373; Runyan v. Coster, 14 Pet. 131; Fairfax Case, 7 Cranch, 621; Sheaf v. O’Neil, 1 Mass. 256 ; Grant on Corp. 98-101; Receivers, etc. v. Rennick, 15 Ohio, 322; Bissell: v. Mich. South. R. R. Co., 22 N. Y. 258; Roll v. Raguet, 4 Ohio, 400; Parish v. Wheeler, 22 N. Y. 494; Argenti v. City of San Francisco, 16 Cal. 254.
    3. The Dayton and Cincinnati Railroad Company had power to-, receive subscriptions to its capital stock payable in real estate:
    
      *(1.) Under its original charter. Ang. & Ames on Corp. 192 ; N. Y. Ins. Co. v. Sturges, 2 Cowen, 664; [163 Strauss v. Eagle Ins. Co., 5 Ohio St. 59; Farmers’ Loan Co. v. Curtis, 3 Seld. 466; Henry v. Vermillion R. R. Co., 17 Ohio, 187.
    (2.) Under the 14th section of the general railroad act of February 11, 1848.
    It is claimed by plaintiffs’ counsel that this section does not apply, because, 1. Ño “acceptance ” is shown by this company, either .upon the part of the directors or the stockholders; 2. That any acts looking to an acceptance were the acts of the directors, who had no power to make such acceptance; 3. That the resolution ■adopted by the board of directors March 25, 1852, does not cover this subscription, because the real estate is not situated “ along the line ” of the road. Of these propositions in their inverse order:
    
      First. The southern terminus of the road was the city of Cincinnati. The real estate in question is situated in the northern part of said city. It would hardly be a forced construction to say that this was “along the line.” But it is a question of intention, and the ■acceptance of this land and other lands adjoining it, after the passage of the resolution, is evidence that they intended to embrace it. But I care nothing for this resolution. It is sufficient that this subscription and conveyance wore received.
    
      Second. The acceptance of an amendment to the charter of a corporation may be made by the board of directors, unless otherwise provided by law. Ang. & Ames, 537; Clark v. Mon. Nav. Co., 10 Watts, 364; Gifford v. N. J. R. R. Co., 2 Stock. 171; C. & D. R. R. Co. v. Hatch, Disney, 84; Zimmer v. Ill. R. R. Co., 20 Ill. 654.
    
      Third. The acceptance of a charter, or an amendment thereto, will be presumed from acts of the corporation which are not referable to any other source of power. Ang. & Ames, 266; Rathbone v. Tioga Nav. Co., 2 Watts & S. 74; Bank U. S. v. Dandridge, 12 Wheat. 70; Propr. Great Beach v. Rogers, 1 Mass. 159; Amherst Bank v. Root, 2 Met. 533; West R. R. Co. v. Babcock, 6 Met. 356; Union Bank v. Ridgely, 1 Harr. & Gill, 413; Zabriskie v. C. & C. R. R. Co., 23 How. 381; Bangor, *etc., R. R. Co. v. Smith, 47 Me. 34; Smead v. Cin. & Ind. R. R. Co., 11 Inch 110.
    Presumptions of acceptance arising from the user of this grant will apply with equal force, if it shall bo held that the stockholders .alone could make the acceptance. No stockholder is shown to have dissented. The plaintiffs distinctly assented, and can not withdraw that assent. The reception of the subscription was a corporate act, binding upon the corporation, and upon each individual stockholder until he makes known his dissent. The lapse of twelve years from these transactions without any expression of disapprobation, might well be held to be sufficient evidence of approbation upon the part of the stockholders.
   Day, C. J.

On the 13th day of October, 1852, the plaintiffs subscribed one hundred thousand dollars to the capital stock of the-Dayton and Cincinnati Railroad Company, to be paid in specified real estate in the city of Cincinnati, valued at that sum.

On the 19th day of March, 1853, the plaintiffs, in consideration of such subscriptions to said stock, conveyed the property to the-company, and received therefor certificates of stock to the amount, of seventy-five thousand dollars, the remaining twenty-five thousand dollars of the amount subscribed being retained by the company to secure an incumbrance on the property.

On the 28th day of December, 1854, the railroad company, for the consideration of sixty thousand dollars, conveyed the property to the defendants.

The plaintiffs brought this suit to recover back the property,, claiming that their conveyance thereof to the company was void,, on the ground that the company was not authorized to take subscz’iptions to its capital stock izz real estate, and therefore had no< capacity to receive the conveyance.

The principal question presented, then, is whether the company was authorized to take subscriptions to its capital stock in real-estate.

The company was chartered in 1847, by a special act of the legislature, and was thereby “made capable in law to have, purchase, 165] *receive, possess, sell, convey, and enjoy real and personal! estate, and retain them, all such lands, tenements, and hereditaments as shall be requisite and actually necessary for their accommodation and convenience in the ti-ansaction of their business.”

By the fourteenth section of “an act regulating railroad companies,” passed February 11, 1848, it was enacted as follows:

“ Sec. 14. Such company m'ay acquire, by purchase or gift, any lands in the vicinity of said road, or through which the same may pass, so far as may bo deemed convenient or necessary by said company to secure the right of way, or such as may be granted to aid in the construction of such road, or be given by way of subscription to the capital stock, and the same to hold or convey in such manner as the directors may prescribe; and all deeds of conveyances made by such company shall be signed by the president,, under the seal of the corporation ; and any existing railroad corporation may accept the provisions of this section, the five preceding sections of this act, or either of them, and after such accejrfcance,. all conflicting provisions of their respective charters shall be null and void.”

• It is conceded by counsel for the plaintiffs, that, if this section is applicable to this company, it conferred the requisite legal capacity to sustain all the conveyances of the real estate in question. But it is claimed that the powers thus conferred, are not available to the company, for the reason that it did not “ accept the provisions of this section.”

If, then, the facts disclosed by the record, were sufficient, as between these parties, to warrant the court below in finding that the “ provisions of this section ” were accepted by the company, the judgment must be affirmed.

When a legislature confers upon a specific corporation additional beneficial powers, without prescribing any mode for their acceptance, it has been held, as a general rule, that the exercise of such powers is sufficient evidence of their acceptance.

It is difficult to see a good reason why the same rule should not obtain, when the powers conferred are by a general law, *and [166 are made applicable to any one of a class of corporations that may accept its provisions.

The company, under its original charter, enjoyed, substantially, all the privileges conferred by this section. That of receiving real estate “ by way of subscription to the capital stock,” was not expressly granted by the original charter. By accepting tlie provisions of this section that right was rendered clear and express. Nothing further could be gained. An acceptance of that privilege was all the company needed of that section. The use of that power was all that could be referred exclusively to the exercise of the privileges granted by this section. The company proceeded to use and enjoy the only additional power thus conferred.

The exercise of this power has ever been acquiesced in by the stockholders and officers of of the company. This affords strong evidence of the acceptance of the power conferred by that section. It was accepted actually and practically, if not expressly. Nothing was wanting but the form of acceptance, and that, so far as essential, where no form was required, maybe fairly implied, under the circumstances of this case.

It is well settled, that the acceptance of an amendment to a charter, may be by parol, in the absence of any provision to the contrary. In this section no form or mode of acceptance is prescribed. All that is required to confer the power granted, is an acceptance thereof. The use and exercise of the power granted, was an acceptance of it in fact, as much as it would have been if it had been expressed in words. It would be a difference in form only; the substance is the same.

This view is strengthened by the consideration that the statute of 1848 was a general law for the creation and regulation of railroad companies, and the legislature made provision for the companies then existing to have the same privileges enjoyed by those to bo created under that law, if they saw fit to accept them. This view is also further strengthened by the fact, that the legislature, so generally, upon the amendment of charters, prescribes the manner of acceptance, and the mode of preserving the evidence of such acceptance.

It is claimed that the acceptance of the provisions under consideration, to be available to the company, coii'ld be made by 167] *the stockholders only. The provision of the section is that "the “ corporation ” may accept. Whatever is meant by the word corporation,” the use of the power by the acting corporation, with the uninterrupted acquiescence of all parties interested in the company, would seem to be sufficient evidence of acceptance by the “ corporation,” in any sense that it was intended to mean.

From the nature and character of the privileges conferred in this section, ther<_ would seem to be no necessity for referring the question of their acceptance to the stockholders. There can be little doubt but that the legislature intended the acceptance should be by the corporate body, and not by the individual corporators. The ■charter of the company empowers the directors “ to transact all business of the corporation.” The “corporation” was authorized to accept the provisions of this section. The acceptance was, then, business of the corporation, which the directors were made “ competent to transact.”

After the passage of the act of 1848, and before the real estate .subscription of tbe plaintiffs to the stock of the company, on the 25th clay of March, 1852, the directors of the company entered upon their records a resolution that “ subscriptions to the capital -stock may be made in real estate.” This, though not in itself, an express or formal acceptance of the provisions of the 14th section of the act of 1848, is evidence of either a former acceptance thereof, ■or of an acceptance by exercising- the powers therein granted ; for, if the company had no power to take such subscriptions except -under that section, this action of the directors, as -well as that of the corporation in receiving the subscriptions, must fairly be referred to the power therein granted, and affords evidence, well nigh ■conclusive, of an actual acceptance of the power by the corporate ■authority.

But suppose the foregoing positions be doubted : how stands the •case between these parties ?

The plaintiffs were stockholders in the company from the beginning, and, much of the time, one or both were on the board of directors. They, surely, do not stand in a position to claim that ■they, as stockholders never accepted the power ^tendered to [168 the company, to take real estate subscriptions to its stock, after having exercised it themselves. One of them was a director when the subscription was made, and when their deed, in pursuance thereof, was delivered to the company. This is a clear admission that the power, under which the company acted, had been accepted in some form.

Moreover, with a full knowledge of all the transactions of the ■company, they stood by and saw the campany liquidate a large debt of their own secured on the property convoyed to the company, i-otained the stock issued on the subscription until more than a year after the commencement of this suit, and, in the meantime, saw the company sell the property to a party who bought and paid .a large sum therefor, and ever acquiesced in all these transactions for a period of ten years, and until the company became bankrupt, .and had abandoned the purpose for which it was organized. To permit them to come in now and repudiate all their acts upon the faith of which the company and the defendants, in good faith, acted .and expended a largo amount of money, would amount to a great wroñg if not a positive fraud. They virtually admit the disputed power as long as it is available for their purposes, but deny it when the power accepted and used by them becomes utterly worthless- and proves to be a misfortune to them.

It is clear that all the parties to this suit acted upon the mutual understanding that the company possessed, and was exercising the-power to take real estate subscriptions to its stock. The company had this power if it had been accepted by the corporation. These parties knew all about the transactions of the company. Their acts-amounted to an admission that the power had been accepted ; and when the one party suffered the other to act on such admission, it. might well be held conclusive against that party.

At all events, wc think the court below, upon the facts of this-case, as against the plaintiffs, might well find that there was an acceptance by the company of the powers conferred by the 14th section of the act of 1848, and that, therefore, there was no want of power or capacity on the part of the railroad company to take and convey the real estate in question.

169] *There is, then, a plain ground upon which the holdings and judgment of the court of common pleas may be sustained, and this renders it unnecessary to consider the other questions discussed in argument.

Judgment affirmed..

Brinkerhoff, Scott, Welch, and White, JJ., concurred.  