#### *Enders v. The Board of Public Works & als. Same v. Robinson & als.*

February, 1845,

Richmond.

(Absent Cabell, P., and Stanard, J.†)

I. Mortgage—Public Company—Assent of Stockholders.‡-The Richmond Dock company having, in January 1823. applied to the Board of public works for a loan to enable it to complete its dock, the - Board of public works agreed to lend to the Dock company 12,500 dollars in money, and 375 shares of bank stock, to be returned in kind in four equal payments on the 1st of January 1828, 1829, 1830 and 1831: and the Dock company agreed to pay interest upon the money and the dividends which should be declared upon the stock, from time to time as they should be declared, and to secure the payment of the interest and dividends, and the return of the money and stock lent, by a mortgage upon all its real property, including the dock. The terms of the loan being agreed upon, the general assembly, by an act passed February 1823, authorized the loan upon the terms of the agreement, and then, in pursuance of this act, and under a resolution of the *directors*of the Richmond Dock company, the president executed the mortgage in behalf of the company, conveying the property as agreed upon, and the money and stock were delivered over by the Board of public works to the directors of the Richmond Dock company. It did not appear, however, that the stockholders of the company had ever expressed their assent to the execution of the mortgage, at any meeting of the company, but they had never dissented, and *145c in their answer t'o a 'bill filed to foreclose it, they made no objection to it, hut it was objected to as invalid by other creditors of the company. Held, the mortgage is valid.

3 Same—Same—Breach of Contract to Return Stock.— The Dock company did not return the stock at the time agreed upon, hut they continued to pay the dividends thereon up to the 1st of January 1832. when stock sold for more than it did at the time when, by the contract, it was to have been returned. Held, under the circumstances of this case, the Board of public works was-entitled to the value of the stock at the time when the Dock company ceased to pay the dividends, with interest thereon from that date till paid.

365 *3, Contract—Breach of—Personalty§—Measure of Damages.—The general rule is, that the proper measure of damages for the breach of executory contracts for the sale and delivery of personal property, Is the value of the article at the time it should have been delivered, with interest thereon from that date until paid. And there Is no distinction,uin this respect, between contracts for the delivery of stock, and other executory contracts.

*4.*Decree|—Lien of—Foreign Attachment.—In a proceeding by foreign attachment against an absent debtor, the decree directs the home defendant to pay the amount of the debt found due by the absent debtor to the plaintiff, out of a particular fund, and also directs the plaintiff to execute a bond to the absent debtor, with the condition which the statute prescribes, before he shall have the benefit of the decree. The decree does not ascertain that the fund out of which the home defendant is to pay the decree, is in hand, though in fact it is. The plaintiff never executes the bond. Held, the decree does not create a lien upon the real estate of the home defendant.

The contesting parties in these causes are the creditors of the Richmond Dock company, and the object of the suits is to adjust their respective priorities of claim upon the property of the company. The claimants are John Enders, the Board of public works, Anthony Robinson and George C. Pickett. The grounds of their claims will be seen from the following statement:

In 1816, the Richmond Dock company was incorporated by the legislature of Virginia for the purpose of constructing a dock at Richmond, and it was declared by the charter Of the company, that when completed, said dock should be a public highway.

The Dock company having become indebted to Hezekiah Ketchum, a contractor, for work done in building the dock, on the 11th of September 1818, gave him a certificate that they owed him 16,000 dollars, to be paid from requisitions upon the stock of the company. On the 29th of September 1818, Ketchum executed his note in New York to Gates and Stewart for 14,012 dollars 20 cents, with interest from the 4th of July preceding, and payable on demand.

In June 1819, Gates and Stewart brought their suit of foreign attachment in the chancery court for the ^Richmond district against Ketchum as a nonresident, and the Richmond Dock company as home defendants, indebted to him, demanding payment of Ketchum’s note to them, with New York interest, by the Dock company. The proceedings in this suit resulted in a decree, rendered on the 8th February 1822, in favour of the plaintiffs against Ketchum for the sum of 14,078 dollars 30 cents, with interest at the rate of 7 per cent, per annum on 14,012 dollars 20 cents from the 30th day of September 1818, till paid, ana the costs, and a decree against the Richmond Dock company directing them to páy to the plaintiffs the debt, interest and costs aforesaid, out of the requisitions upon the stock of said company, which had or might come to their hands since the 11th of September 1818. But the plaintiffs were not to have the benefit of this decree, until they should enter into bond with security, in the clerk’s office of the court, in a penalty equal to double the amount of the sum decreed to them, payable to Ketchum, with condition as the law requires in the case of absent defendants.

At the date of this decree, the Dock company had received from requisitions upon the stock of the company made subsequent to the 11th of September 1818, much more than the amount decreed; but Gates and Stewart never did give the bond directed by the decree. On the 18th of July 1823, they entered into an agreement with the Dock company, by which the company bound themselves to pay a certain sum in hand, and to pay to them, on the 18th day7 of July in each y7ear, commencing in 1824, a sum not less than 3000 dollars, until the whole decree was satisfied. The company farther agreed that in the event of a failure or refusal to pay the sums of money above specified, or either of them, the said Gates and Stewart were to be authorized to issue any writ of execution upon said decree, or to enforce the same in a.ny mode which they, at that time, might employ, 'x'free from any obstacle which might be interposed by the lapse of time, and that the company would not hinder or obstruct the execution *146of the same, either by appeal, or by* insisting upon the effect which lapse of time might produce. And in consideration of these undertakings by the company, Gates and Stewart agreed to accept payment of their decree in the manner above stated, and covenanted that if the payments were punctually made, they would not attempt to enforce the decree by execution, or in any other mode, and that any such attempt by them should be illegal and void.

In 1828, the Dock company having failed to make the payments as stipulated in their agreement, Gates and Stewart assigned their decree and all their rights therein to John Enders, without recourse to them; and in 1835, they and Enders applied to the judge of the superior court for the county of Henrico, to whose jurisdiction the case had been transferred by the act of 1831-2, by petition stating the above facts, and that more than seven years having elapsed since the decree, and Ketchum not having entered his appearance in the cause, the said decree had become final and conclusive, and, therefore, the bond required by the decree was no longer necessary; they, therefore, prayed that upon executing such bond, if the court should think it necessary, or dispensing with it, if that be proper, that the court would award proper process of execution upon said decree for the benefit of Enders. Upon this petition, after hearing the Dock company in opposition thereto, the court, on the 9th of June 1835, dispensing with the bond as unnecessary, authorized Enders to issue execution against the Dock company on the decree of 1822, for the amount due upon it. On the 15th of October 1835, Enders sued out an elegit which was levied on the 21st November of the same year upon the dock, and an undivided moiety thereof was delivered to him by the sheriff, at the annual value of 2350 dollars: and he *took possession of the other moiety under a contract with the Dock company, and thus held possession of the whole until the sale thereof made under a decree in these causes.

The Richmond Dock company not having the means to complete the dock, in January 1823, applied to the Board of public works for a loan to effect that object, and an agreement was entered into, by which the latter was to Tend to the former 12,500 dollars in money, and three hundred and seventy-five shares of the capital stock of the Bank of Virginia. The terms of this loan were that the Dock company should pay into the treasury of the state to the credit of the Fund for internal improvement, all dividends which should be declared upon the stock, as the same should be declared and payable by the Bank of Virginia, and should pay, semiannually, interest at the rate of six per cent, per annum upon the money loaned, and that the said company should return the stock so loaned in kind, and the money so loaned, in four semiannual instalments, the first payment to be made on the 1st day of January 1828. The loan was to be secured by a mortgage to be executed by the company upon the dock and all the real property of the company, together with all the appurtenances, ways, &c. thereto belonging; and the corporation of Richmond was to become responsible for one half of any loss which might be sustained by the Board of public works by reason of such loan, if the mortgage of the Dock company should prove an insufficient security* therefor. In order that this agreement might be executed, the legislature, on the 13th of February 1823, passed an act authorizing the Board of public works to make the loan to the Dock company upon the terms which had been agreed upon, and on the 21st of February, the president of the Dock company, in pursuance of a resolution of the directors, adopted on the 19th of the month, executed a mortgage upon the *dock and real property of the company, to the Board of public works, to secure the payment of the dividends and interest, and the. return of the stock and money lent, according to the terms of the agreement: and the corporation of Richmond on the 25th of February also executed a mortgage on real estate, in pursuance of and in accordance with her undertaking. These mortgages were regularly admitted to record in the clerk’s office of the county court of Henrico, on the 27th of February 1823.

The Dock company did not return the money and stock loaned at the time agreed upon, but they paid the interest and dividends thereon up to the 1st of January 1832, and having retained the stock until that time, they sold it in February and April at 110% dollars and 110% dollars per share: and from that time no farther interest or dividends were paid by the Dock company.

Anthony Robinson and George C. Pickett were the owners of lots ly*ing on and extending into the river between the lower end of the dock and the upper wharves at Rocketts, and on the 1st of April 1823, they entered into a contract with the Dock company, by which they agreed that the company should open a channel from the lower lock of the dock to the upper wharves at Rocketts, through their lots, in consideration of which the Dock company undertook to fill up their lots and build wharves thereon along the line of said channel, and it was stipulated that if the said wharves were not completed within twelve months from the date of the contract, the company should pay to each of the said parties respectively the sum of fifty cents per each foot of wharf so to be erected, per month, in lieu of rent and compensation for the loss and injury sustained by them by reason of the failure of the company to comply with their contract.

The Dock company having failed to complete the wharves in the time stipulated, Robinson and Pickett, *in 1826, filed their bill in the chancery court, at Richmond, against the company, asking a specific execution of the contract, and for compensation for the failure of the company to build the wharves in the pe*147riod agreed upon. This cause came on to be finally heard on the 29th of January 1829, when it being ascertained that there was due to Robinson the sum of 3021 dollars, and to Pickett the sum of 5355 dollars, on account of the failure of the Dock company to complete the wharves within the time agreed upon, the court made a decree against the company in favour of the said RoDinson for the said sum of 3021 dollars, with legal interest from the 1st day of the month till paid, and in favour of Pickett for the said sum of 5355 dollars, with like interest.

In 1835, the Board of public works, instituted a suit against the Richmond Dock company to foreclose their mortgage, and in their bill, stated that by the failure of the Dock company to return the money and stock loaned at the time specified, the property conveyed in the mortgage had ‘ ‘become vested in the Board of public works, redeemable nevertheless in equity by the return of the said three hundred and seventy-five shares of the stock of the Bank of Virginia, with the dividends thereon declared and yet due and unpaid to the said Board of public works, and the repayment of the sum of 12,500 dollars, with the arrears of interest thereon, ” and “that they had frequently applied to the said Richmond Dock company to pay the said money, interest and dividends, and return the said stock, which they had always declined to do.” They, therefore, prayed that the said Dock company might be compelled to return to the Board of public works the three hundred and seventy-five shares of stock loaned, or in lieu thereof pay its value, &c. The Board of public works afterwards amended their bill, and made Gates and Stewart, Enders, and Robinson and Pickett, parties defendant in *their suit, in order to have their respective claims upon the property of the Dock company adjusted. The Dock company answered, admitting all the allegations of the bill, so far as they related to that company. Enders answered, claiming priority over the Board of public works, by virtue of his decree of 1822, and Robinson and Pickett answered, referring to their bill filed in the same court against the plaintiffs and their codefendants the Richmond Dock company and Enders, in which they had set out their claim.

The bill of Robinson and Pickett was filed in 1839, and after stating their claim upon the Dock company, as herein before given, it was alleged that executions issued upon their decrees, which were duly returned. And they insist upon the priority of their lien over that of either the Board of public works or Enders. The Richmond Dock company answered the bill, admitting all the facts which concerned them, and the other defendants answered, setting up their claims, and contesting the priority-claimed by the plaintiffs.

The two causes were proceeded in together. George C. Pickett having died, and the suit having been revived in the name of Helen Pickett, his administratrix, on the 26th of June 1841, the court, by consent of the parties, made a decree appointing a commissioner to sell the property of the Richmond Dock company embraced in the mortgage to the Board of public works, and directed one of the commissioners of the court to ascertain and report the value of the stock of the Bank of Virginia on the 21st of Eebruary 1823, the date of the mortgage, and at the commencement of the first of these suits, and also on the 1st of January in each of the years 1828, 1829, 1830, and 1831. The said commissioner was farther directed to state an account of the whole amount due from the Richmond Dock company to the Board of public works, for the money and stock lent, also the amount due to Enders as assignee of Gates and ^Stewart, and to Robinson and Pickett upon their respective decrees.

The commissioner for the sale of the property, reported that he had sold it to the James river and Kanawha company, which had been authorized by an act of the legislature passed in the session of 1840-41, to purchase and hold it, vested with all the rights, and subject to all the obligations of the Richmond Dock company, for the sum, after paying the expenses of sale, of 97,982 dollars, payable in one, two, three and four 3Tears, from the 1st day of July 1841. The commissioner directed to ascertain the value of the stock of the Bank of Virginia, and to state the accounts of the parties, made a report, by which it appeared that the bank stock was worth per share, on the 1st of Eebruary 1823, 67 dollars 50 cents; on the 1st of January' 1828, 95 dollars; 1829, 91 dollars; 1830, 95 dollars; 1831, 100dollars; and on the 24th December 1835, when the suit of the Board of public works was instituted, 114 dollars. The commissioner stated an account of receipts and expenditures by Enders, whilst in possession of the dock, and found due him on that account, a balance of 770 dollars 26 cents; he found due him as assignee of Gates and Stewart on the 1st of July 1842, the sum of 25,694 dollars 663*2 cents, not having charged him with the rent of the moiety of the dock as assessed under his elegit. He found due to Anthony Robinson, at the same date, 5468 dollars; and Pickett’s estate, at the same date, 9531 dollars.

At a subsequent day, the commissioner, by the consent and directions of the parties, made four different statements of the amount due to the Board of public works under their mortgage. In the first statement, the bank stock was charged at its value on the day when it should have been returned, with interest thereon from that time, and the amount found due, according to that statement, was 76,383 dollars 84 cents, of which 45,567 ^dollars 71 cents was principal, bearing interest from the 9th of March 1843. In the second statement, he charged the stock at its value on the 1st of July 1832, when the Dock company ceased to pay the dividends thereon, with interest from that time, and accord*148ing to that statement the amount due on the 9th of March 1843, was 87,792 dollars 81 cents, of which 54,078 dollars 12 cents was principal. In the third statement, he charged the stock at its value when the suit was brought, with the dividends which had been .declared upon it up to that time, and interest from thence, making the amount due on the 9th of March 1843, 91,762 dollars 38 cents, of which 64,512 dollars 50 cents was principal. And in the fourth statement, he charged the stock at its value when the account was taken, with the dividends up to that time, making the amount due by that statement, 67,186 dollars 56 cents, of which 58,418 dollars 75 cents was principal.

The two causes came on to be finally heard together on the 9th day of March 1843, .when the court made a decree, giving priority of payment to the Board of public works, and adopting the first of the special statements of the commissioner, fixed the amount of their debt at 76,383 dollars 84 cents, with interest on 45,567 dollars 71 cents, a part thereof, from the date of the decree; and giving to Robinson and Pickett precedence of Enders.

From this decree, Enders applied for and obtained an appeal to this court.

G. N. Johnson, for the appellant.

The decree in favour of Gates and Stewart, named in February 1822, was prior to the mortgage given to the Board of public works, and Enders as their assignee, is entitled to be first satisfied out of the proceeds of the sale of the dock. The objections urged against the existence of his lien under this decree, are all of them groundless. The decree is not to be paid out of a particular fund, but out *of any money of the company; though it was not to be paid until the company had collected the amount from requisitions upon the stock. In point of fact, this had been done at the time of the decree, and, therefore, it might have been enforced immediately by execution. The decree did not contemplate farther action by the court; but the fact whether the company had collected the amount by requisitions upon the stock was to be ascertained in pais; and if Gates and Stewart issued their execution before the money was received, the remedy of the Dock company was by a motion to the court to quash it.

The bond directed by the decree, was a bond for the benefit of Ketchum. He has waived the benefit of that bond by not entering his appearance within seven years: and from that period the decree is conclusive against him. The execution of this bond required no action by the court, but might have been done at any time by the plaintiffs. This being the case, they had the capacity to issue the execution by giving the bond: and it is this capacity to issue the execution which gives the lien.

It is farther objected that no execution was taken out within the year; and no election was made on the record. But the lien arises from the capacity to take but execution ; and does not cease because process is necessary to enable the party to do it. So-far as the debtor, and the property in his possession is concerned, there is no doubt- on the question. In Avery v. Robin-sons, 4 Munf. 541, the elegit was sued out six years after the judgment. In Coleman v. Cocke, 6 Rand. 618, a court of equity enforced the lien of the judgment, not only against the debtor, but against volunteer purchasers from him. In Watts v. Kinney, 3 Eeigh 272, there was no execution or election within the year, and yet the court enforced the lien of the judgment against attaching creditors of the debtor. An attaching creditor stands on the footing of a purchaser with notice: and the record *shews that the Board of public works is such a purchaser, ¡laving had actual notice of the decree of Gates and Stewart. The cases of Fox v. Rootes, 4 Leigh 429, in note; Stuart v. Hamilton, 8 Leigh 503; and U. S. v. Morrison, 4 Peters’ R. 124, shew that the lien of the decree will be enforced against a purchaser wi-th notice. The act of assembly refers the lien back to the date of the judgment whenever it is taken out, and directs the elegit to be levied on all the lands held by the debtor at that time, or which he may have acquired subsequently; 1 R. C. ch. 134, § 1, p. 525; and there would be no object in this provision of the statute, unless the lien overrides mesne conveyances to persons having notice. Indeed the terms of the law are broad enough to give the lien of the judgment preference over all alienations, and it is only limited by equitable construction in favour of purchasers without notice.

But whatever may be the doctrine as to judgments at law, it is hfld that a final decree gives a lien, although subsequent proceedings may be necessary to give effect to that lien. We all know that before the statute, there were no executions upon decrees, and yet the decree gave a Hen upon the land of the debtor. Mason v. Williams, 1 Salk. R. 507; Smith v. Eyles, 2 Atk. R. 385; Morrice v. The Bank of England, Cas. Temp. Talb. 217. In this case the decree is final. Hervey v. Bronson, 4 Leigh 108; Thornton v. Fitzhugh, 4 Leigh 209; Cocke v. Gilpin, 1 Rob. R. 20. Every thing put in issue by the pleadings was decided by the decree of 1822; and as it would have been considered final before the statute authorizing executions upon decrees, it will be so considered now, that statute not altering the character of decrees. 2 Rob. Pr. 412.

2. I come next to enquire into the validity of the mortgage, by virtue of which the Board of public works claim priority of the other creditors of the Dock company. This mortgage bears date the 21st of Februafiy *1823, and was executed by the president of the company in pursuance of an order of the directors; and the question is first; whether the Richmo'nd Dock company could execute a valid mortgage upon its property. This is a company *149incorporated for a purpose in which the public is interested, and the charter of incorporation declares that the dock when completed shall be a public highway. Sessions Acts 1815-16, p. 94. It is true that a corporation has generally the power of alienation. Angel & Ames on Corp. 125; Kyd on Corp. 108. But whether a particular corporation has that power must depend on the letter or spirit of its charter; Ang. & Ames 66; and its powers must be limited by the purposes of its creation. In this case, this conveyance is in conflict with the objects and purposes for which the company was incorporated. This security can only be made available by a sale, and I submit that no purchaser can be vested with the rights, or incur the obligations of the Dock company.

It is true that the legislature which granted the charter, may alter it with the assent of the stockholders of the company. But this assent must be given, and in this case, no assent ever has been given by the stockholders to the act of 1823, authorizing the loan by the Board of public works to the company. The only assent pretended is the assent of the directors of the company. But if it was competent for the Richmond Dock company to execute a valid mortgage, this mortgage has not been executed by the authority which will constitute it the deed of the company. The president of the company has, by virtue of his office, no power to convey away the property of his constituents ; and, therefore, the deed executed by him, can pass nothing unless he had received from the company an authority to execute it, which will make it the deed of the corporation. The authority on which he acted was a resolution of the directors, and as they possessed but a delegated power, it ^devolves upon the Board of public works to shew, that they had authority from their constituents to execute the deed. Where is the evidence of their authority? It must be found in the charter, or by-laws, or resolutions of the stockholders, and yet we look in vain to these sources for the evidence that any such power had been conferred upon the directors.

Will it be said that the stockholders have acquiesced in, and thus ratified the execution of the deed, by their receipt of the money and stock loaned? In the first place, the receipt of the loan is by the same directors who authorized the execution of the deed ; and their subsequent conduct cannot confirm their previous unauthorized act. But second, although there are many acts which originally unauthorized, may be ratified by the subsequent conduct of the parties ; the execution of a deed is not among the number. That is an act to be done by the party whose deed it is to be, either in person, or by an agent authorized by deed to act for him, and no previous parol authority, and much less subsequent acquiescence, can constitute the instrument executed by the agent, the deed of the principal.

But if the mortgage is valid, the court below erred in the extent of the relief given to the Board of public works. The act of February 1823, in express terms, provides for the return of the stock in kind. This is likewise the provision in the mortgage. And both the original and amended bills ask for the return of the stock. When, then, the plaintiffs ask what it is admitted they are entitled to, what all parties are willing the}7 shall receive, are they to be premitted to repudiate what they had declared and claimed to be their rights, and, at the hearing of the cause, set up another and a different claim? But the mortgage did not give to the Board of public works an election to take money in place of stock; and if they had a right to elect,, they did so by receiving the dividends and claiming the stock in their bill. The *decree in this case allows them to make their election from time to time, and in that is in opposition to the case of Gardener v. Pullen, 2 Vern. R. 394.

As to the claim of Robinson and Pickett, if it is necessary to sue out an execution within the year, in order to continue the lien of the decree upon the real estate of the debtor, these parties have not done it, and, therefore, they had no lien prior to 1835, when Rnders issued his elegit.

Stanard and Baxter, for the Board of public works.

The first queston to be considered is, whether the decree of 1822, in favour of Gates and Stewart, created a lien upon the real estate of the Richmond Dock company. This decree is in its terms positive against Ketchum, but it is to be paid by the Dock company out of a particular fund. No proceeding was had upon this decree until 1835.

No judgment or decree operates a lien upon land except where an elegit may be sued out upon it. Scriba v. Deans, 1 Brock. R. 166. This case shews that a judgment, on which there is a stay of execution, creates no lien whilst the execution is stayed; and that such judgment will be postponed to a subsequent judgment or decree, rendered whilst execution on the first is stayed. Could, then, Gates and Stewart have sued out an execution on their decree against the Richmond Dock company? Rirst. The decree required that they should execute a bond in a penalty double the amount of the decree, with. condition to indemnify Ketchum, before they could sue out execution thereon. This was not only a provision of the decree, but it was required by the statute ; and it was a statutory condition precedent to their right to enforce their claim against their absent debtor. Without this bond the Dock company could not have satisfied the decree, without subjecting itself to pay the amount over again to Ketchum, if he came in within *seven years, and successfully contested the plaintiffs’ claim; and until the bond was executed, the clerk would have been guilty of misconduct in office if he had issued an execution; whilst the court would have quashed it on motion. The decree was at *150best a decree with stay of execution until the bond was executed, and comes directly within the principle of Scriba v. Deans; a case which was affirmed in the Bank of the U. S. v. Winston, 2 Brock. R. 252, and is not opposed to, but sustained by the principles of the case of U. S. v. Morrison, 4 Peters’s R. 124.

But if the bond had been executed immediately, the plaintiffs could not have sued out an execution on their decree..against the Dock company, until it was ascertained that the requisitions, out of which the decree was to be satisfied, had been collected. This was not ascertained by the decree; and could only be done by a subsequent proceeding in the cause. This is in fact admitted by Enders, when in 1835, he applied to the court by petition to authorize an issue of execution upon the decree of 1822.

If the decree of 1822 was a final decree, then it was barred by the statute of limitations, 1 Rev. Code, ch. 128, § 5, p. 489. There had been no execution issued and no proceedings on the decree for more than ten years, and, therefore, in the language of judge Carr, in the case of Fleming v. Dun-lop, 4 Leigh 338, it is annihilated. The court is referred to the cases of Randolph v. Randolph, 3 Rand. 490; Fleming v. Dunlop, 4 Leigh 338, and Herrington v. Haskins, 1 Rob. R. 591, where this statute has been considered, and the conclusion of the court is, that the lapse of ten years is a bar to all proceedings on a judgment, upon which no execution has issued, and no scire facias to-revive it, has-been sued out.

The mortgage, .which is the foundation' of our claim, is" • assailed, first, on the ground that the Richmond Dock ^company had no authority to execute it; and second, that it has not been executed by the proper authority.

So far as the jus publicum is concerned, the act of 1823 removes all difficulty on the subject, and leaves only the enquiry as to the powers of corporations generally to alienate their lands. The doctrine on this subject is stated by Angel & Ames, p. 125, to be, that independent of positive law, all corporations have the absolute jus disponendi not limited as to objects, or circumscribed as to quantity. And in this they are sustained by the case of the Mayor and commonalty of Colchester v. Lowten, 1 Ves. & Beame 226. Coke Littleton 300 b. holds that corporations have the whole fee in them, and may maintain a writ of right, and the right to alienate arises out of the doctrine of the common law, in relation to the power of alienation by the owner of the fee, andáis -not to be sought for in the charter of incorporation. This is confirmed by the* cáse of Sutton’s hospital, 10 Coke’s R. 29 a. 30 b. In that case it was held that a charter granted by the king, by which the right- of alienation was restrained, was not valid in law; and this is the doctrine of judge Green in The Banks v. Poitiaux, 3 Rand. 136, where he held that though the purchase and sale by the banks might be a cause of forfeiture of their charter, it could not affect the validity of the sale.

The passage cited from Angel & Ames, by the counsel for the appellant, - does not warrant the idea that, because the mortgage might disable the corporation from performing the duties it owes to the public, it is therefore void. Corporations may annihilate themselves. Of the five modes of terminating the existence of a corporation, stated in 2 Bac. Abr. title Corporations, letter G. 285, three are by its own acts. If, then, in the payment of' its debts it terminates its existence, it cannot, therefore, be held to have transcended its powers, especially as the law contemplates the indebtedness of corporations, *and gives remedies against them by suit, and process of execution.

It is true, that a mortgage is to be enforced by sale, and it is generally true, that a purchaser would not be vested with the rights, or subjected to the obligations of the corporations. But a mortgage may be given, and may answer the purposes of a security, and yet never be enforced; and as the mere execution of the mortgage, does not prevent the performance of the corporate duties, the failure to perform these duties cannot be urged against the validity of the mortgage. So if it becomes necessary to enforce the mortgage by sale, it does not necessarily follow, that the purchaser cannot perform the corporate duties; and surely, therefore, the court cannot say that a mortgage is invalid, because it may prevent the just enjoyment of her rights by the public, when it may be that the event will "never occur. In, fact, in this case, although the mortgage has .been enforced by sale, the" purchasét; is vested" with all the rights, and subjected to all the obligations of the Dock company, and the interests of the public have been guarded and secured; and, therefore, the objections urged to the validity of the mortgage are proved to be groundless.

It is said, that this mortgage was not executed by a competent authority. The 13th section of the charter, gives the directors of the company authority to do every thing that the stockholders could do.* Under this broad authority they surely might affix the seal of the company. But what are the facts? In 1823, the application was made to the Board of public, works for a loan by the Richmond Dock company. The act of 1823, authorized the loan upon the condition that the company should execute the mortgage. The money and *stock were received, and the deed executed by the proper officers of the company. They, have never objected either to the receipt of the loan or the execution of the deed. They admit both in their answer. The evidence- shews thát the stock *151was transferred to the company and held by them until 1832, when it was sold by them; and we submit that it is not competent for third parties now to say, that this deed was not executed by the proper authorities.

Having established, as we think, the validity of the mortgage, we come next to . enquire, what is the amount of the claim of the Board of public works. The Richmond Dock company paid the dividends upon the bank stock loaned, up to January 1832. In December 1835, this bill was filed, and it asks for the stock, or its value. This is not a bill filed for the specific performance of a contract for stock; and could not be sustained if it was. Cudd v. Rutter, 1 P. Wms. 570; Mason v. Armitage, 13 Ves. R. 25; Nutbrown v. Thornton, 10 Id. 159. The object of the bill was to ascertain the amount the Board of public works were entitled to claim as damages for the failure to return the stock, and to have it paid out of the mortgaged property. The authorities distinctly ascertain, that we are entitled to the value of the stock at the time it should have been returned, or at the time of trial, at the election of the lender. West v. Beach, 3 Cow. R. 32; Clarke v. Pinney, 7 Id. 681; Shepherd v. Johnson, 2 East 211. But, under the circumstances of this case, we are entitled to the value of the stock at the time the contract was terminated. It was competent for the parties to continue the contract, and this they have done. The Dock company were, therefore, entitled to hold the stock until the Board of public works demanded it. They did hold it until 1832, and after that time the contract was a continuing contract, until the demand by the Board of public works, which was not made until December 1835. We are, ^therefore, entitled to the value of the stock at that time, with the dividends thereon up to that time, and interest on the amount from that date till paid.

Grattan and Robinson, for Robinson and Pickett.

There are three sets of creditors claiming the property of their common debtor, the Richmond Dock company; and the first enquiry is, are any or all of them entitled to subject the property to the payment of their debts? And if they are, in what way is it to be done? There is no doubt about the right to subject the profits. Sessions Acts 1815-16, p. 44; Id. 1836-7, p. 45. But the question is, can they have it sold? We shall not enter into the general question discussed by the counsel who have preceded us; nor is it necessary, as the act of 1823 confers upon the Dock company the power to execute the mortgage, if it did not possess that power upon general principles.

If the mortgage is valid, and may, and indeed must be enforced by a sale, the only remaining property of the Dock company is the equity of redemption, and as that, upon the foreclosure of the mortgage, will be money, no objection can be made to the application of that fund to the satisfaction of the company’s creditors; and there can be no doubt about their right to have the mortgage foreclosed, and to have satisfaction of their claims out of the surplus. We refer to the cases cited 2 Rob. Pr. 47.

If the property of the Richmond Dock company is property subject to the claims of creditors, then the question arises, w hat is the order of their priorities. We admit the priority of the Board of public works, and on this point our controversy is only with Enders. If his counsel has succeeded in satisfying the court that the property cannot be sold, then he could have had no lien, for certainly all the reasons which forbid a sale, equally forbid that a moiety of the property should be *put into the hands of a creditor. But if the property of the Dock company may be subjected to the payment of its debts, then we insist, that Enders had no lien upon it, because no execution could issue upon the decree by virtue of which he claims. This is evident from the nature of the decree. The proceeding by foreign attachment was authorized by the act of 1777, 9 Hen. Stat. 397, when decrees in chancery were not enforced by execution. That remedy was given by the act of 1788, 12 Hen. Stat. 465, and the attachment law was framed with reference to the then existing state of things, and has so continued to the present day. That law provides, that the court giving the decree shall direct the process by which it shall be executed. 1 Rev. Code, ch. 123, jj 1, 2, p. 474.

But in this case no execution could have issued upon the decree against the Richmond Dock company, because it was to be paid out of a particular fund. Gibson v. White &c., 3 Munf. 94. And it could only be enforced by attachment. Hill v. Fox, 10 Leigh 587. The question is not whether the decree is final, but whether an execution could issue upon-it, as it is the capacity to sue out execution which gives the lien. Before the statute giving executions upon decrees, the decree, though for the payment of money, only bound the personal estate. Perry v. Philips, 10 Ves. R. 34; 2 Mad. Ch. 462, citing Bligh v. Earl Darnley, 2 P. Wms. 619. It was no lien upon land, and only became such by operation of the statute 1 Rev. Code, ch. 134, *§*55, p. 545. This statute requires executions upon decrees to he levied in the same time, gives the lien to the same extent, and limits it in the same way as upon judgments at law. If then this decree is final, so as to authorize an execution upon it, none having been issued in ten years, it is completely barred by the statute. 1 Rev. Code, ch. 128, *\*5, p. 489. Nor can the case be helped in any way by the proceedings in 1835, and the *levy of the elegit at that time, because the whole proceeding was illegal;, and the Dock company having only an equity of redemption in the property, it was not subject to execution. Haley v. Williams, 1 Leigh 140; Coutts v. Walker, 2 Leigh 268.

The claim of Robinson and Pickett, is *152founded on their decree of 1829. Upon this decree, they allege, that execution issued and was regularly returned, and this allegation is admitted I33' the answer of the Dock company. The statute could not, therefore, bar the claim, and although no execution could be levied upon the equity of redemption, the decree was nevertheless a lien upon that interest, upon the same principles as upon the absolute interest in property, except that it embraces the whole interest instead of a moiety; and it is entitled to the same priority. Haleys v. Williams, 1 Heigh 140; Coutts v. Walker, 2 Heigh 268.

The only remaining question is as to the amount, to which the Board of public works is entitled under its mortgage. It is true that the cases referred to, by the counsel, seem to lay down the rule as authorizing the plaintiffs ^ to elect to take the price of the stock, either at the time it should have been returned, or at the time of trial. The principles, upon which the courts placed their decision in these cases, involve too much of speculation to be safe guides in practice. Indeed the weight of authority is against them; and in Virginia, especially, it is well settled that there is no such right to elect. The rule here, and elsewhere, with the exception, perhaps, of New York, is that the value at the time when the article, whether stock or something else, should have been delivered, is the measure of the plaintiffs’ recovery. M’Arthur v. Seaforth, 2 Taunt. R. 257; Grey v. Portland Bank, 3 Mass. R. 390; Shepherd v. Hampton, 3 Wheat. R. 200; Hopkins v. Lee, 6 Wheat. R. 109; Douglas v. M’Allister, 3 Cranch 298; Merryman v. Criddle, 4 Munf. 542; Christian v. Miller, 3 Heigh 78. In equity *the rule appears to be the same. Bull v. Douglass, 4 Munf. 303; Groves v. Graves, 1 Wash. 1; Reynolds v. Waller’s heirs, 1 Wash. 164; Short v. Skipwith, 1 Brock. R. 103; Nelson v. Matthews, 2 H. & M. 164. The court below acted upon this rule in fixing the amount of the claim of the Board of public works, and they have, therefore, received all to which they are entitled. If, indeed, this is to be considered a continuing contract, then we submit, that the period of its termination is not 1832 or 1835, but the date of the decree; as the Board of public works, in their bill, expressly recognize the right of the Richmond Dock company to redeem the mortgage by a return of the stock, and the relief which they ask is that the stock may be returned. Although then this is not a bill for a specific execution of a stock contract, it is a bill recognizing the continued existence of such a contract, _ and, therefore, there is no foundation for the pretence that the contract was terminated either in 1832 or 1835.

G. N. Johnson, in reply.

It is objected, that the decree of Gates and Stewart against the Richmond Dock company was not a final decree, because it was to be paid out of requisitions upon the stock of the company. It is in principle ver3r like a decree de bonis : testatoris. There the decree is to be paid out of a particular fund, the assets in the hands of the administrator, and yet that is held to be a final decree. 2 Homax on Ex’ors, 448.

The doctrine advanced by the counsel on the other side, that the lien depends upon the present capacity to take out execution, is not the doctrine of this or any other court. It is not the doctrine of Deans v. Scriba. That case decides that the suspension of the right to take out execution, suspends the lien, but does not destroy it, and only gives priority to a decree or judgment obtained before the suspension ceased. But the case does not decide that between a creditor and debtor, or a *purchaser without notice, the lien was not an existing lien. According to Deans v. . Scriba, the creditor may sue out execution when the time, for which it is suspended, terminates, and the statute gives the execution which is to be levied upon all the lands, of which the debtor was seized at the time of the decree. It is wholly irreconcilable with the decisions of this court, that a purchaser with notice should be protected from the operation of the lien of the decree. Coleman v. Cocke, 6 Rand. 618; Watts v. Kinney, 3 Heigh 272; Stuart v. Hamilton, 8 Heigh 503. In these cases no elegit had issued, and a scire facias was necessary to give the capacity to take out an elegit, and, 3*et, the court held that the lien continued and might be enforced against a subsequent alienee. Take the case of an injunction to a judgment within the year, which stands for 3’ears, and is then dissolved. The creditor may take out execution within a 3Tear from the dissolution. Noland v. Cromwell, 6 Munf. 185. So a judgment during the term relates back to the first day of the term, and although no execution can be taken out until the term is ended, yet when taken out it avoids all intermediate alienations. Skipwith v. Cunningham, 8 Leigh 271. As against the debtor or a purchaser with notice, it must be wholly immaterial, whether the judgment creditor has the right to take out his execution at once, dr whether his right to do so is suspended from particular causes. If, then, the decree gave to the plaintiffs a right to the money, if or when the requisitions were collected, there was a conditional right to the execution and a conditional lien, which, though suspended until it was ascertained that the requisitions were collected, yet existed, and when the suspension was removed, overreached all mesne alienations in the hands of creditors or purchasers with notice.

The same may be said of the bond required by the decree. It was to be executed in pais, and until it was executed the lien was suspended, but only suspended, *and when the bond was executed the right to issue the execution existed, : and the lien followed. It is said, indeed, that our attachment law does not give a right to issue execution, but that the court must prescribe the mode of enforcing the *153decree, and, therefore, no lien exists in any case of the kind. It is not necessary to examine the language of the statute, as the practice has settled the question.

In an action at law to recover damages for the failure to perform a contract, whether for stock, land, or other thing, the rule is settled in Virginia, that the value at the time the contract should have been performed, is the measure of damages. Our courts have always refused to enter into the enquiry; what the party would have made if the contract had been performed; and refusing to enter into these speculative enquiries, there can be no foundation for the proposition, that the value at an intermediate period may be given.

But this is not a case at law, but in equity for specific performance of a contract. It is said, that equity will not entertain a bill for the specific performance of a stock contract. That is true as a general proposition, but there are many exceptions to it. Thus where a court of equity has jurisdiction of a case on other grounds, and the plaintiff asks for a specific performance, and the defendant assents to it, this court will not then refuse to do it. 2 Story’s Equi. p. 21 to 31; Doloret v. Rothschild, 1 C. E. Ch. R. 302. In this case, the government shews its intention throughout this proceeding that the stock should be returned. This is evident from the act of February 1823, authorizing the loan, from the mortgage and the bill.

The counsel for the Board of public works have contended, that the contract continued long after the time, when the stock was to have been returned. When then did it cease? There is no evidence of a demand in 1832. In 1835, the bill asks for the execution of the contract, “and this is necessarily a prayer that the contract shall be executed at the time of the decree, as it is only by the decree that the object could be attained.

Is this mortgage valid? That the Richmond Dock company could not fulfil the obligations it had come under to the public, after conveying away all its property, is admitted. But it is said that by the act of 1840-41, which authorized the James river ana Kanawha company to purchase, the Dock company have been enabled to sell so as to protect the public interests. This act, however, cannot relate back to 1823, but the validity of the mortgage must depend upon itself, and the condition of things at the time it was executed, and the whole enquiry’ is, whether, by the execution of the mortgage, the Dock company went beyond its powers.

Whilst the charter of the Dock company does not shew' any authority to convey all its property, it does afford evidence that it had no such power. It is said that corporations may destroy’ themselves. But they must act according to their charter; and there are two parties to the question of self-destruction in all public corporations. Misuser or nonuser is not of itself a dissolution, but that must be effected by a proceeding against them by the commonwealth. Railroad Co. v. Canal Co., 4 Gill & John.

*

For monographic note on Contracts, see end of case.

†

Judge Cabell was related to some of the parties interested in the Dock company. Judge Stanard had been counsel in the cause.

‡

The principal case is cited in Kelly v. Board of Public Works, 25 Gratt. 755, as a precedent for maintaining a suit against the board of public works.

§

Measure of Damages for Breachfof Contract.—See Davis v. Grand Rapids School Furniture Co., 41 W. Va. 717, 24 S. E. Rep. 630, and monographic *note*on “Damages" appended to Norfolk, etc., R. Co. v. Ormsby, 27 Gratt. 455.

|

 Lien of Decree—Commissioner of Sale—Effect of Statutes.—The conclusion arrived at by Judge Staples in Lee v. Swepson, 76 Va. 173. that entirely independently of sec. 1 and 2, ch. 118 of the Va. Code of 1873 (which are also in force in West Virginia), a decree, entered directing a commissioner of sale out of funds reported in his hands to pay certain creditors named, has, under sec. 1 and 2 above, the effect of a judgment and is a lien on the lands •of such commissioner of sale, was declared by the court, in Rickard v. Schley, 27 W. Va. 628. to be unsustainable in light of the Virginia cases decided prior to the passage of these sections, and cites, in support of his contention, *Enders*v. *Board of Public Works, 1 Gratt. 364,*and Gibson v. White, 3 Munf. 98. See monographic *note*on “Decrees” appended to Evans v. Spurgin, 11 Gratt, 615, and Fidelity Ins., etc., Co. v. Shen. Val. R. Co., 33 W. Va. 761, 11 S. E. Rep. 58.

*

That section, after giving: certain specific powers to the directors, proceeds thus—“ and transact all other "business and concerns of the said company in and during the interval between the general meetings of the same.”

AEEEN, J.,

delivered the opinion of the court.

The court is of opinion there is no error in so much of the decree as affirms the validity of the mortgage of the 21st February’ 1823, and confirms the sale of the property thereby conveyed, made under a previous interlocutory decree, nor in so much thereof as ascertains the priorities of the creditors claiming to participate in the fund arising from the sale; and, therefore, that there is no error in the decree to the prejudice of the appellant. The court is further of opinion, that as a general rule the value of the articles to be delivered at the time when “they should have been delivered, with interest from such time of delivery, forms the proper measure of damages in actions for the breach of ex-ecutory contracts, for the sale and delivery of personal property, and that there is no distinction in this respect between contracts for the delivery of stock and other executory contracts. But, to this rule, there may be exceptions founded on particular circumstances. That in this case, the circumstances shew a waiver of the right to call for the stock at the time it was to have been returned, and an understanding between the creditor and debtor to continue it on the footing of a stock contract; that, in accordance with such understanding, the dividends w'ere paid and received not by way of interest on a money debt or payments, but as dividends on the stock under the terms of the contract; that if such dividends had been less than the interest on the cash value of the stock at the periods fixed upon by the decree, it would not have been competent for the creditor to have claimed the difference from the debtor, nor is it competent for the latter to insist upon the conversion of what was received as dividends under the contract, into payments of a debt not then contemplated by the parties as an existing money demand.

The court is further of opinion, that the failure of the Dock company to pay the dividends in July 1832, constituted the first default, and was the period at which the value of the stock should have been ascertained as affording the proper measure of damages. The court is, therefore, of opinion that there was error in said decree to the prejudice of the appellees, the Board of public works, in the particular above mentioned. It is, therefore, reversed for this error, and affirmed in all other respects, with costs of the appellees, as the parties substantially’ prevailing. And the court, proceeding to render such decree as the court below ought to have rendered, approves and confirms the second statement of the supplemental “report; and the balance appearing thereby of 87,'792 dollars 81 cents, with interest on 54,078 dollars 12 cents, part thereof, from the 9th day of March 1843, until paid, is *154the amount which the Board of public works is entitled to receive out of the property sold. That the residue, if not more than sufficient to discharge their claims, should be paid to said Robinson and Pickett, and the surplus, if any, to said Rnders, according to tlje terms of said decree, which in these respects is affirmed.