Miller v. Chance , 3 Edw. Ch. 399 ( 1840 )

The Vice-Chancellor:

As regards the mortgage to Kidney and Smith and by them assigned to the complainant, enough appears on the face of the bill to call for an answer. The consideration is sufficiently described to bring it within the statute as being a consideration for which the trustees were authorized to give a mortgage, namely, a debt contracted for the purpose of creating or erecting a building or masonic house, or in the creation or erection of such a building. The general object and intention of the statute is to be looked at and. not the strict letter of it in a case like the present; and the court will give effect to the instrument, unless it appears that the statute has been infringed or evaded in its spirit as well as in its letter.

So, in regard to the execution of the mortgage by nine of the trustees out of the eleven, such eleven including the mayor and recorder ex officio. This is enough. It was a majority; and, so far, within the words of the statute ; and the court will intend it was executed by authority of the “ board of trustees” until the contrary is shown: Cozine v. Graham, 2 Paige’s C. R. 177.

As respects the mortgage to Higgins : I am of opinion the consideration for which it was given is clearly enough stated to be one for which the trustees might lawfully execute a mortgage within the act; and although this mortgage is executed by five trustees—not being a majority of the whole when we include the mayor und recorder—yet I am inclined to say the statute means a majority of the trustees exclusive of the two dignitaries ; at all events that the court must here again intend it was executed by these five under and by virtue of the authority of the board until the contrary is shown—and that the defendants must set up this want of authority by plea or answer, if they would avail themselves of it.

The demurrer must be overruled, with costs ; and the defendants will have to answer the bill in twenty days.