Coe v. N. J. Midland Railway Co. laws of this state whose charters do not designate their places of meeting, shall hold their business meetings, the meetings of their directors, and shall keep their offices and books in this state, provides, also, that the act shall not apply to any corporations whose charters are not subject, by the terms thereof, to be altered, modified or repealed. None of the charters of the consolidated companies are subject, by their terms, to alteration, modification or repeal. The general principle mentioned in Hilles v. Parrish is, that a private corporation, whose charter has been granted by one state, cannot hold meetings and pass votes in another state; but there is a well-settled distinction between corporate acts, strictly so called, acts of the company itself, as such, and the acts of its authorized agents. Green's Brice's Ultra Vires App. 676; Jones on R. R. Securities § 84. In Ang. & Ames on Corp. §§ 124, 274, it is said that the directors of a corporation are not a corporate body when acting as a board, and are competent to act as agents beyond the bounds where the corporation exists. See, also, Galveston R. R. v. Cowdrey, 11 Wall. 459, and Arms v. Conant, 36 Vt. 745. Again, there is sufficient evidence of ratification of the act of the board of directors in passing the resolution in question, both by their constituents and the legislature, to remove any question as to its validity. The mortgage was executed as a corporate act, under the seal of the company and the hand of its president; it was recorded in the counties through which the railroad passes, and the money realized by the sale of the bonds secured by the mortgage was expended upon the road itself. In the second and third mortgages the existence of the first mortgage is stated, and it is recognized as a prior and a first lien on the property. The holders of the second and third mortgage bonds have taken their securities expressly subject to its lien, and the third also makes express provision for the payment, out of the loan thereby secured, of the amount of the first and second mortgages. Coe v. N. J. Midland Railway Co. Nor, it may be remarked, in passing, are the rights of the judgment creditors superior to those of the second and third mortgage bondholders. But, further, the legislature, by act of March 27th, 1872 (P. L. 1872, p. 924), recognized the legality of the first mortgage. After reciting that the company had provided for the issue of its first mortgage bonds in several denominations ($100, $500 and $1,000) to the amount in the aggregate of three millions, the act authorizes and empowers the company to cancel and destroy five hundred and fifty of those bonds, of the denomination of $100 each, and to issue, instead, an additional series of first mortgage bonds of the denomination of $1,000; and it provides that the additional series shall consist of fifty-five of those bonds, which shall be countersigned by the trustees, and thereupon shall be held and deemed, in all courts and places whatsoever, to be secured by that mortgage, the same as if they had originally been subject to the lien thereof. The objection that the mortgage does not conform to the resolution authorizing it, is based upon the fact that the mortgage provides that in case of default for six months in the payment of interest, the whole principal and interest shall be due, while the resolution merely provides for the issue of bonds and a mortgage to secure the payment of $3,000,000 in twenty-five years from the 1st of August, 1870, with interest at the rate of seven per cent. per annum, payable semi-annually. But the provision under consideration is manifestly not in contrariety to the resolution. It was necessary to render the bonds marketable, and it adds nothing which the law itself would not grant; for, in the absence of such provision, upon such default and the commencement of foreclosure proceedings it would be within the power of the court to sell, if necessary, the entire premises for the purpose of raising as well the principal as the unpaid interest. Howell v. Western R. R., 4 Otto 463; Rev. p. 117 § 74. Coe v. N. J. Midland Railway Co. In this connection, the objection of the lack of power on the part of the company to make the mortgage may be disposed of. The supplement (February 2d, 1854) to the charter of The New Jersey, Hudson and Delaware Railroad Company (P. L. 1854, p. 45), gives to that company power to make its bonds without limitation, and to secure their payment by mortgage of its real and personal estates, franchises, &c. The charter of The New Jersey Western Railroad Company authorizes it to borrow money not exceeding in amount two-thirds of the amount of its capital stock. The charter of The Sussex Valley Railroad Company authorizes it to raise money on its bonds and mortgages of its property and franchises for any sum not exceeding $2,500,000. The New Jersey Midland Railway Company, by the act of consolidation, was clothed with all the rights, powers and privileges of the consolidated companies. The power to issue. bonds under the charter of The New Jersey, Hudson and Delaware Railroad Company, it will be observed, was unlimited. Nor is the objection to the sufficiency of the proof of the mortgage well taken. The mortgage, as before stated, was executed under the corporate seal of the company and the hands of its president, Cornelius A. Wortendyke, and its secretary, Hezekiah Watkins. The name of Eugene Smith appears as that of a subscribing witness. By the certificate of proof, which was made before a master in chancery, it appears that Mr. Watkins, the secretary, on the 17th of August, 1870, deposed that he knew the corporate seal of the company; that the seal affixed was that seal, and that it was affixed by the order of the directors; that Cornelius A. Wortendyke was the president, and signed his name to the instrument as such by the order of the directors, in the presence of the deponent, and that the latter signed his name to the instrument as secretary by like order. It also appears by the certificate, that, on the same day, Eugene Smith, the subscribing witness before mentioned, proved Coe v. N. J. Midland Railway Co. the execution of the instrument by the trustees. Whether Eugene Smith was, indeed, a witness to the execution of the instrument by the company, does not appear. The signature of Hezekiah Watkins, as secretary, to the deed may well be regarded as that of a subscribing witness to the execution of the instrument by the affixing of its corporate seal by order of the board. Though the instrument is signed by both the president and the secretary in accordance with usage and the directions of the resolution, the signatures of both of those officers are placed there merely for the purpose of attesting the affixing of the seal of the company as a corporate act. The proof by the secretary is in compliance with the requirements of the statute as to the person by whom proof is to be made, and the proof itself is in accordance with law. It is objected that it does not appear that the contents were made known to the grantor, but it is not necessary that that should appear in the proof of a deed or mortgage. Nor can the objection that, in three of the counties through which the railroad passes, the transcription by which the record of the mortgage was made, was from a copy of the instrument, and not from the instrument itself, be sustained. The mortgage appears, according to the certificates of the clerks of the counties, to have been recorded on different days; in Sussex, on the 30th of August; in Bergen, on the next day; in Passaic, on the 5th of September, and in Hudson, on the 8th of that month. In accordance with the custom in such cases, the original mortgage appears to have been produced to the clerk, in his office, with a true copy; the two were compared by the clerk, and he then marked the original as recorded, and subsequently made the copy in the book of records from the copy left with him. On this point it may be added that, as before stated, the subsequent mortgagees had actual notice by their bonds and mortgages of the existence of the first mortgage. The Coe v. N. J. Midland Railway Co. record is lawful, and was constructive notice to them and the judgment creditors. Objection is made to the maintenance of this suit, on the ground that George Opdyke resigned his office of trustee, and that Abram S. Hewitt, also a trustee under the first mortgage, has not resigned. There is some evidence of the tender of his resignation by Mr. Opdyke, but there is no evidence that it was accepted before the beginning of the suit. There is evidence, also, that Mr. Hewitt resigned, but it does not appear clearly that the resignation was accepted. He is a party to this suit as trustee under the third mortgage, and, in view of the fact that he is a defendant, it would have been incongruous to have made him a complainant therein. There appears to be no doubt that he did relinquish the trust and that his resignation was accepted. Mr. Opdyke, notwithstanding the fact of his having tendered his resignation, has still seen fit to act as a trustee, and is a complainant accordingly. There would be no difficulty, under the circumstances, in adjusting, if necessary, the parties in accordance with the requirements of correct practice. The name of Mr. Opdyke could be stricken from the record, if it were improperly there. By the terms of the mortgage, the estate thereby granted is granted to the trustees, their survivors or survivor, or their successors or successor and assigns, without words of inheritance. It is insisted, on the part of the defendants, Jackson, Hoxsey, Van Houten and Demarest, that the estate is merely an estate for the life of the last survivor of the trustees, and is not an estate in fee. And it is also insisted that, inasmuch as the complainants' bill contains no prayer for the reformation of the mortgage, it cannot be reformed in this suit. But, under the circumstances, the court would, if necessary to purposes of equity, permit an amendment of the bill by the insertion of a prayer for reformation. The bill, however, contains a prayer for such further or other relief in the premises as the nature of the case may require. Under this prayer the court will find no difficulty |