corporation with respect to matters within the trust, unless the trustees neglect to act or have taken a position prejudicial to the bondholders' interests, or there is a vacancy in the office: Knapp v. R. R. 20 Wall. 117; Coal Co. v. Blatchford 11 Wall. 177; Galveston R. R. v. Cowdrey 11 Wall.

479.

COOLEY, J. The mortgage which this suit is brought to foreclose was given by the Marquette & Pacific Rolling Mill Co. to secure the payment of thirty bonds of five thousand dollars, dated July 1, 1871, payable to Sidney D. Miller, trustee, ten years after date, with eight per centum interest, payable semi-annually. The mortgage contained a provision that in case the interest should at any time be overdue for sixty days, the principal should, at the election of the trustee, become immediately due and payable. Complainant files the bill as holder of a part of the bonds, the trustee having declined to do so.

The Marquette & Pacific Rolling Mill Co., the mortgagor, makes no defense, and the sole contestant of complainant's rights is William H. Parks, who is grantee of the parties who purchased the equity of redemption at execution sale. He claims-first, that the mortgage never had any validity; and second, that if it had validity in the hands of the trustee, complainant has never acquired any rights under it, for the reason that his demand was not such an one as the mortgage was intended to secure, and he is not in position to claim as a bona fide purchaser or holder of negotiable paper. Peter White, who is made defendant, claims rights under the mortgage which do not antagonize those asserted by the complainant.

I. The mortgage is said to be invalid because never authorized by the corporation giving it. The Rolling Mill Company was organized under the statutes for the incorporation of mining and manufacturing companies, which are collected in chapter 95 of the Compiled Laws of 1871. By one of the sections of this collection it is provided that "No alienation, diversion, sale or mortgage of any or any part of the mine works, real estate or franchise of any corporation men

tioned in the first section of this act shall have any force or effect, or pass any title thereto, or interest therein, unless expressly authorized by the vote of three-fifths in interest of the entire stock of said company actually present or legally represented at some meeting of stockholders called and notified" as required by law, with an exception not important here. The provision in respect to notice is that 'No meeting of stockholders shall be or be held to be legal or valid, or the proceedings thereof of any force or effect, unless the directors or other parties or officers calling the same shall cause a notice of the time, place and object of holding the same to be published two weeks for any annual meeting and four weeks for any special meeting previous thereto in some newspaper published in the county * * and shall also cause a copy of such notice to be sent by mail to each stockholder of record, at his usual place of residence, twenty days before the time of such meeting.' Comp. L., §§ 2888, 2887. The authority, such as it was in this case, was given at a special meeting, and it is claimed-1, there is no sufficient proof that the meeting was duly notified; and 2, that the notice actually given was insufficient to justify what was done at the meeting.

The evidence of the giving of notice of the meeting seems to us ample. It comes from William Burt, who testifies with much confidence to having caused notice to be published in a newspaper of the county, and produces a copy of the one published. He also testifies that as agent for the company he paid for the publication, and served notice by mail. on the several stockholders. He gives reasons for his belief that all this was done in compliance with the statute, and the reasons are satisfactory. We discover no defect here.

The fact that the action taken did not correspond with the notice is more important. The notice is given in the margin,*

*OFFICE OF THE MARQUETTE & PACIFIC ROLLING MILL COMPANY,

MARQUETTE, Dec. 15th, 1870.

At a meeting of the directors of the Marquette and Pacific Rolling Mill Company, this 15th day of December, A. D. 1870, it was ordered that a meeting of the stockholders of this company be called and held on Monday, the 16th day of January, A. D. 1871, at 10 o'clock a. M., at the

and the object of the meeting is stated to be " for the purpose of electing a new board of directors, and to authorize the issue of bonds to the extent of one hundred thousand dollars, to be secured by mortgage on the company's property, and for such other business as may lawfully come before said meeting."

The meeting was duly convened and no question is made. that the stock was sufficiently represented. After electing directors, the record states that "The meeting then proceeded to consider the issue of one hundred and fifty thousand dollars of first mortgage bonds upon the property of the company, and upon a vote, unanimously authorized and instructed the treasurer to make such issue."

The object of the meeting, as testified, is thus seen to have been to authorize bonds and a mortgage to the extent of one hundred thousand dollars, and the authority actually given was to issue bonds and give mortgage for one hundred and fifty thousand dollars. The explanation of this action, which is given on the part of complainant, is that the corporation was already indebted to the amount of fifty thousand dollars secured by mortgage of part of their property, and the new bonds and mortgage were intended in part to provide for that, so that the debt would be increased one hundred thousand dollars only, and the notice be complied with in spirit though not in letter. But in behalf of defendant Parks it is insisted that the motive, not disclosed by the record, is immaterial; the fact being that one thing was proposed and another thing done; and this, according to the express provisions of the statute, cannot be "legal or valid," or "of any force or effect."

These are strong and seem very imperative words, and if full effect is given to them it may be difficult to support this. mortgage. But we are not hastily to conclude that words.

office of the said company in the village of Marquette, Michigan. Said meeting is called for the purpose of electing a new board of directors and to authorize the issue of bonds to the extent of one hundred thousand dollars, to be secured by mortgage on the company's property, and for such other business as may lawfully come before said meeting of stockholders. JOHN BURT, President.

thus apparently imperative are to be given a literal interpretation and enforced accordingly. Courts often speak of acts and contracts as void when they mean no more than that some party concerned has a right to avoid them. Legislators sometimes use language with equal want of exact accuracy; and when they say that some act or contract shall not be of any force or effect, mean perhaps no more than this: that at the option of those for whose benefit the provision was made. it shall be voidable, and have no force or effect as against his interests. This was found to be the meaning in the mind of the legislature in enacting the Massachusetts usury law. It was declared in most positive terms that mortgages on usurious considerations should be "utterly void;" but a consideration of its purpose, which was to protect debtors against the enforcement of unconscionable demands, made it clear that it never was intended that strangers to the title should be at liberty to question such a mortgage. Green v. Kemp 13 Mass. 515. Mr. Justice Bayley in one case intimated that the word void in a statute might be construed voidable where the provision is introduced for the benefit of parties only, but not where it is introduced for public purposes and to protect those who are incapable of protecting themselves (Rex v. Hipswell 8 B. & C. 466, 470), and though this distinction has been questioned (Rex v. St. Gregory 2 Ad. & El. 99, 107), much good reason lies at the foundation of it. If it is apparent that an act is prohibited and declared void on grounds of general policy, we must suppose the legislative intent to be that it shall be void to all intents; while if the manifest intent is to give protection to determinate individuals who are sui juris, the purpose is sufficiently accomplished if they are given the liberty of avoiding it. A statute would strike blindly if the letter alone were to be regarded, not the spirit. A statute declares that certain indentures not made as by the statute provided should "be clearly void in law to all intents and purposes;" and it was nevertheless held that, if acted upon, the apprentice gained a settlement thereby. St. Nicholas v. St. Peter, Strange 1066. And in Ohio a purchase at a judicial sale by one who acted as appraiser of the

property, though the statute declared it should be "considered fraudulent and void," was held to be voidable only on an interposition or proceeding by a party in interest, directly for the purpose of avoiding it. Terrill v. Auchauer 14 Ohio N. S. 80. This subject is considered at length and many authorities examined in State v. Richmond 26 N. H. 232, to which we refer.

The statute now under consideration was passed to protect the interests of stockholders in mining companies. It intends that their mining property shall not be conveyed away or mortgaged except by their deliberate action after they have been notified of a proposal to do so, and have had time to deliberate upon and fully consider it. But the matter does not concern the public at large; no principle of public policy is at stake; no wrong, direct or indirect, is done to any human being if conveyance is made or mortgage given without the exact notice required, unless it be a wrong to the stockholders themselves. And as others are not concerned, why should the statute give them the right to raise questions of regularity which the stockholders elect to waive? We are satisfied such was not its purpose.

In this case the stockholders acted deliberately in sanctioning the giving of the mortgage, and they now make no complaint. The bonds and mortgage were given, and have been acted upon. Complainant has loaned money in reliance upon them. Interest has fallen due and he has filed his bill to foreclose, and neither the corporation nor any of its stockholders has seen fit to make defence. The corporators may possibly have had a right to take advantage of the exact words of the statute, repudiate their action, and treat the mortgage as of no force or effect, but they had an equal right to treat it as effective and valid. They have chosen the latter course, and this is conclusive upon the corporation and upon any one claiming under it. What would have been the result had no corporate meeting ever been held we do not consider.

II. The corporation became debtor to Beecher in five notes of ten thousand dollars each, each of which was secured