
    *Brockenbrough v. James River & Kanawha Co.
    January Term, 1855,
    Richmond.
    Absent, Thompson, J. (He sat in the case below.)
    l. Internal Improvement Companies — Delinquent Stockholders — Sale of Stock. — Internal improvement companies, which have the right to sell the stock of shareholders for delinquencies in the payment of installments called for by them, are not obliged to sell at the first failure to pay an installment, but may wait until delinquencies have occurred on them all, and may sell the stock, and hold the stockholder liable for the amount of any loss that may result to the company, with interest on the installments from the time they severally fell due.
    a. Decrees — Sale of Land — Bond and Security. — It is not error in an interlocutory decree for the sale of land, to fail to require bond and security from the plaintiff, as prescribed by law, to perform the future orders of the court; it will be a sufficient compliance with the law, if this is done in the final decree. (Accord. Kelly v. Linkenhoger, 8 Grat. 104.)
    In August and December, 1834, William H. Brockenbrough subscribed for six shares of the stock of the James River and Ka-nawha Canal Company, then lately incorporated by the Legislature of Virginia, at the par value of $100 per share. At the time of the purchase, he paid to. the agent of the company one dollar upon each share, and subsequently paid the first four requisitions on the stock held by him,, amounting- in all to $114, the last of which fell due in 1836. From this time until March, 1839, various requisitions were made from time to time upon the stock, so that on the 25th of that month, the entire amount of the original subscription had been called in. Brockenbrough paid none of these last requisitions. In 1842, all the stock of Brockenbrough was advertised and sold for delinquency in the payment of these several requisitions, and brought at the sale the net sum of $55 04, leaving him still indebted to the company, after giving him the credits he was entitled to and charging him with interest on *the several requisitions from the time they became due, in the sum of $565 55, with interest on $426 96, part thereof, from the 25th day of July, 1843, until paid. Brockenbrough being a non-resident, the company proceeded by way of foreign attachment, and filed a bill seeking to subject certain real estate of his to the payment of the debt. The bill was answered by Brockenbrough, and at the hearing the court decreed that he should pay the sum above mentioned to the company; or, if he failed to do so within four months, that a commissioner of the court, appointed for that purpose, should sell the said real estate, and out of the proceeds, pay the said sum of money to the company, with costs, &c. The decree did not require the plaintiff to give bond and security in double the value of the property to perform the future decrees and orders of the court, as is required by the statute, before anjT -sale can be decreed.
    From this decree Brockenbrough appealed to this court.
    The main point in the case arose upon the construction of the 18th section of the charter of the James River and Kanawha Company, which is in substance an extract from the general road laws of Virginia, and a similar provision to which exists in the charters of internal improvement companies generally. It is as follows:
    “If any stockholder shall fail to pay the sum required of him by this act, within thirty days after the adjournment of the first general meeting, public notice having been given thereof in the manner above required, or shall fail to pay any other part -of the subscription lawful^ required of him by the President and Directors, after such requisition shall have been advertised four weeks in some public newspaper printed in the citj' of Richmond, it shall be lawful for the President and Directors, after advertising the time and place of sale for four weeks, in some newspaper so published, to sell at ^public auction, for cash, the share or shares of the delinquent stockholder, and to convey •and transfer the same to the purchaser. And the said President and Directors, -after retaining from the purchase money the costs and charges of the sale, and the amount in arrear and due to the company, shall pay over the surplus, if any, to the said stockholder or his legal representative. - If the purchase money shall be insufficient to pay the costs and charges of the sale, and the sum in arrear and due to the company, then the delinquent stockholder, as well as theoriginal subscriber for the stock, and the heirs, executors and administrators of each of them, shall be liable for the payment of the balance; and such balance may be recovered of the original subscriber and delinquent stockholder, jointly or severally, and from the heirs, executors or administrators of either, upon motion, on ten days previous notice, in the inferior or superior court of the county or corporation, in which the defendant, or either of them, may be found; or by warrant before a justice of the peace, where the sum to be recovered is within the jurisdiction of a single magistrate ; or by any other proper action before any court having cognizance thereof. The purchaser at such sale shall be regarded as an original subscriber, and as such, he, his heirs, executors and administrators, shall be liable for all subsequent delinquencies.” Sup. to R. C. 1819, p. 478, $ 18.
    No counsel appeared for the appellant, but the grounds of his objection to the decree appear in the petition of appeal, as follows:
    I. Because, in the rendition of said decree, the cou-rt below has disregarded the plain terms and express provisions of the act of Assembly, which declares, that no sale of the lands of an absent defendant shall be decreed, “until the plaintiff, or some one for him, shall have filed in the court, or in the clerk’s office, bond with good security, in double the value of such lands and tenements, for performing the future orders and ^decrees of the court in that behalf.” 1 R. C. p. 475, | 3; 2 Rob. Pr. 210.
    . II. Because, under the provisions of their charter, the Company was not authorized to proceed as they have proceeded with respect to this stock, and sell the same, under the circumstances and in the manner above stated, on the account and at the risk of the defendant, and to hold him responsible for the deficit of such sale, arid if the court below were right in holding the defendant responsible to the company for his subscription, it should also have held .the company responsible to the defendant for his stock, and have decreed accordingly.
    The only authority conferred by the charter on the company to sell the stock of delinquent stockholders, is given' by the 18th section of the act of incorporation, passed March 16, 1832, (Sup. R. C. p. 478.) And the only question is, under what circumstances, and in what manner are the company authorized by the provisions of that section', to make sale of delinquent stock? Did that section contemplate that the officers of the company might make requisition upon requisition, until the whole amount of the subscription had been called for, and no further requisition could be made, and might then, at their own. time and pleasure, sell the stock for cash, and hold the subscriber responsible for the difference? If it did, what is the meaning of that part of the section which declares, that “the purchaser at such sale, (that is the sale authorized by this section,) shall be regarded as an original subscriber, and as such, he, his heirs, executors and administrators, shall-be liable for all subsequent delinquencies?” Under such a proceeding as has taken place here, there could be no subsequent delinquencies.” It is submitted then, that this section was not designed to legalize such a proceeding as has been resorted to here, and is sanctioned by this decree; but, that under this section, taken in connection with that which precedes it, the option was given to the company, whenever a stockholder failed to *meet any requisition lawfully made, to hold him responsible, as stockholder, for such requisition, and such as might be thereafter made, and by proper proceedings against him, as stockholder, to compel him to pay the same, or, by proceeding under the 18th section, to terminate all connection between such delinquent stockholder and the company, and to find, in ‘‘the purchaser at such sale,” a new stockholder, who should be liable, (in the language of the law,) for • ‘all subsequent delinquencies.” It will be observed, that the act speaks of “requisition,” in the singular, not “requisitions,” in the plural; and it is submitted, that whenever the company designed to avail themselves of the provisions of the section, it was their duty to have proceeded at once upon default made. They had clearly the power to do so, and the stockholder had a right to require that they should do so. The law did not mean to subject him at the same time to the sale of his stock, and to a personal responsibility for a default, occurring 'subsequent to that for which the stock was liable to be sold. This responsibility the law designed to cast on another, and the company should not be at liberty, by their own acts to shift the burden upon him. If there be doubt as to the construction, it must operate against the company. The charter confers upon them exclusive privileges in derogation of common right, and it must receive a strict construction against the corporation, and in favor of those whose rights may be affected by their action. In the language of the court, in Stourbridge Canal v. Wheely, (approved by the Supreme Court of the U. S.,) in the Charles River Bridge v. Warren Bridge, and by the Court of Appeals in the Tuckahoe Canal v. the Tucka-hoe Railroad, (see 2 Barn. & Adol. 793; 11 Peters, S44; and 11 Ueigh, 42,) the corporation “can claim nothing that is not clearly given them by the act. Unless, therefore, the act in question clearly gave the company authority to sell this stock, in manner and form as they have sold it, they had no right to make such sale, and the decree of the *court below, by which that proceeding on the part of the • company was in effect ratified and sanctioned, was erroneous.
    98
    The company had the right, undoubtedly, to sell after the failure of the appellant to pay the sixth requisition, ' (the first he failed to pay,) and then, if the sale had been properly made, they might have collected any deficiency from him, but they had no right to delay a sale until sixteen requisitions had been made, and then sell for them all. And this for the obvious reason, that if they had sold at the first failure of the appellant to pay a requisition on his stock, he would have been liable only for the deficiency up to that time, and the purchaser would have been liable only for the subsequent deficiencies. But notwithstanding their delay and neglect to sell at the proper time, the appellant is held to be liable for all subsequent delinquencies and interest upon them; all of which he would have been relieved from, had the company sold at the time they were authorized by the law to sell, instead of waiting till a time when, by their neglect and the injury they have done the appellant, they had lost (as is submitted,) their right to sell.
    G. N. Johnson, for appellee:
    As to the 1st point in the petition of appeal. The appearance of Brockenbrough did not have the effect of discharging the attachment; vide Acts of 1840-1, p. 78, ch. 68. Mr. Brockenbrough proceeded under this statute, giving bond and security for costs, but not to pay the costs and damages of the decree; and hence the attachment was not discharged, and the court did not err in failing to require bond and security of the plaintiff.
    Again, it was decided in Kelly v. Uink-enhoger, 8 Grat., p. 104, that it is not error in an interlocutory decree, in a proceeding for the sale of land, to fail to decree security according to law against the plaintiff; the final decree may do so. The case was no doubt decided on the principle that an interlocutory decree is worth nothing until confirmed by a final decree.
    *As to the second point. It is objected that the stock was not sold soon enough by the company, its right being to sell at the first failure to pay an installment. This seems to me to be a strange objection, that a man should not be required to pay his debt, because he has been indulged by his creditor. But to treat it more seriously, see the charter of the company, Acts of 1831-2, p. 76, ch. 32, and Sup. to R. C. of 1819, p. 478, i 18. It appears from this charter, very plain to me, that the company have the right to sell, not only at the first failure to pay an installment, but at any time after, and that the proceeds of sale are to be applied, not alone to the first installment omitted to be paid, but to all installments in arrear. Suppose installments are called for in rapid succession, and before there is time to advertise and sell the first, another falls due — is it to be pretended, that because two installments have fallen due, the lien of the company on the stock, or its right to sell it, is gone?
    
      But again. The stock sold after all the installments were due, for only ten dollars ; and what would it have sold for when only a few were paid? The purchaser would have to pay, if he bought at all, charged with the balance of the installments due ! It would be absurd to say, under such circumstances, that the company would be obliged to sell after the first failure to pay an installment, and could not sell subsequently, if it omitted or were unable to do so then. The case is just like sales of land under a trust deed when payments are to be made in installments. It could not be pretended, in such a case, that the vendor should be compelled to sell at the failure of the vendee to pay the first installment. He may wait until all the installments have fallen due, and may then sell; nor would it make any difference if there had been a provision in the contract of sale, that the vendee should be responsible for the installments thereafter to become due, to the extent of any deficit at the subsequent sales.
    I submit there is no error in the decree.
    
      
      See monographic note on “Corporations (Private)” appended to Slaughter v. Com., 13 Gratt. 767.
    
    
      
      See monographic note on “Decrees” appended to Evans v. Spnrgin, 11 Gratt. 615.
    
   STEM), P.

The decree is unanimously affirmed.  