Reply for the creditor. under the obligation of the contract? The contract created two perfect and complete and several obligations,-one of A., the other of C. One is as much the obligation of the contract as the other. It is an unfounded assumption that the obligation of a contract can be incumbent only on the party that makes the pro mise. The obligation of a contract is a duty of performing it recognized and enforced by the laws. An executor or administrator, though he has made no promise, is under a legal duty to perform the contracts of the deceased; the obligation of the contract is incumbent on him; and a State law releasing him would as clearly impair the obligation of the contracts of the deceased as a law releasing the living debtor. So a husband is bound to perform the contracts of his wife before marriage. Without making any promise, he takes on himself the legal duty of performing these contracts of hers, by voluntarily entering into the marital relation at a time when and place where the law made this duty incumbent on him. Could he be released without impairing the obligation of such contracts? For still stronger reasons was the obligation of this contract incumbent on the defendant. He voluntarily entered into such relations with this corporation as created a perfect legal obligation to pay this debt when it was contracted, and the plaintiff parted with his property to an insolvent corporation on the faith of this legal obligation incumbent on the defendant. The defendant's counsel has pointed out a supposed distinction between the cases cited from the New York reports and this case. It is that, in those cases, the charters made the stockholders jointly and severally liable for all the debts and demands contracted by the corporation. But the defendants were not contractors. The contracts were made by a third person, viz., the corporation. The relation of the stockholders to the contracts was not created by the contracts themselves, but by the law, as in this case; and the obligation of this defendant to perform this contract is as complete and perfect, Opinion of the court. and arises from the same causes as the obligations of the defendants in the cases in New York. In those cases, as in this case, there was a liability created by law, and made incumbent on one person to perform the contracts of another person. If that liability could not be discharged without impairing the obligation of a contract, how can this liability be discharged without a similar violation of the Constitution? Mr. Justice NELSON delivered the opinion of the court. The question upon the provisions of the charter of the railroad company-in connection with the sale of the property by the plaintiff to the corporation, out of which this debt accrued-is, whether a contract, express or implied, existed between him and the stockholder? It is asserted, in behalf of the latter, that a contract existed only between the creditors and the corporation; and that the obligation of the stockholder rests entirely upon a statutory liability, destitute of any of the elements of a con tract. Without stopping to discuss the question upon the clause of the statute, we think that the case falls within the principle of Woodruff v. Trapnal,* and Curran v. State of Arkansas,† heretofore decided in this court. In the first of these cases, the charter of the bank provided that the bills and notes of the institution should be received in all payment of debts due to the State. The bank was chartered 2d November, 1836. On the 10th January, 1845, this provision was repealed, and the question was, whether or not, after this repeal, the bills and notes of the bank, outstanding at the time, were receivable for debts due to the State. The court held, after a very full examination, that the clause in the charter constituted a contract with the holders of the bills and notes on the part of the State, and that the repealing act was void as impairing the obligation of the contract. * 10 Howard, 190. + 15 Id., 304. Opinion of the court. In the second case, the charter of the bank contained a pledge or assurance that certain funds deposited therein should be devoted to the payment of its debts. It was held by the court, that this constituted a contract with the creditors, and that the acts of the legislature withdrawing these funds were void, as impairing the obligation of the contract. Now, it is quite clear that the personal liability clause in the charter, in the present case, pledges the liability or guarantee of the stockholders, to the extent of their stock, to the creditors of the company, and to which pledge or guarantee the stockholders, by subscribing for stuck and becoming members of it, have assented. They thereby virtually agree to become security to the creditors for the payment of the debts of the company, which have been contracted upon the faith of this liability. This question has been repeatedly before the courts of the State of New York, and they place the obligation of the stockholders upon two grounds. The first is that of contract. In Corning v. McCullough,* Chancellor Jones, then in the Court of Appeals, observes that the liability of the defendant, upon which the action is grounded, is for the payment of a debt of the company incurred by the purchase of merchandise of the plaintiffs, for the use and benefit of the company, and wherein the defendant, as one of the members, was interested, and for which he thereby, and under the provisions of the charter, became and was, concurrently with the company, from the inception of the debt, personally liable. It is, he says, virtually and in effect, a liability upon a contract and the mutual agreement of the parties; not, indeed, in form an express personal contract, but an agreement of equally binding obligation, consequent upon and resulting from the acts and admissions or implied assent of the parties. The second ground is upon the view that the legislature, by subjecting the stockholders to personal liability for the debts of the company, thereby removed the corporate protection * 1 Comstock, 47, 49. Opinion of the court. from them as corporators, and left them liable as partners and associates as at common law.*. There is another view of the case, involving a violation of the principal contract between the creditors and the cor poration, which we think equally conclusive against the judgment of the court below. This view rests upon a principle decided in Bronson v. Kinzie,† and the several subsequent cases of this class. There Kinzie executed a bond mortgage to Bronson, conditioned to pay $4000 on the 1st of July, 1842, and covenanted, that in case of default, the mortgagee should sell the premises at public auction, and convey them to the purchaser. Subsequently to the execution on the mortgage, the legislature passed a law that mortgagors on a sale of the premises, under a decree of foreclosure in chancery, should have a right to redeem them at any time within twelve months from the day of sale. By another law it was provided, that when the premises were offered for sale, they should not be struck off unless at two-thirds of a previous valuation. The court held that these acts so seriously affected the remedy of the mortgagee as to impair the obligation of the mortgage contract within' the meaning of the Constitution, and declared them void. Now, applying the principle of this class of cases to the present one, by the clause in the charter subjecting the property of the stockholder, he becomes liable to the creditor, in case of the inability or insolvency of the company for its debts, to the extent of his stock. The creditor had this security when the debt was contracted with the company over and above its responsibility. This remedy the repealing act has not merely modified to the prejudice of the creditor, but has altogether abolished, and thereby impaired the obligation of his contract with the company. We are of opinion, upon both of the grounds above recited, that the court below erred. * Conant v. Van Schaick, 24 Barbour, 87. JUDGMENT REVERSED. +1 Howard, 311. Statement of the case. DRURY V. FOSTER. A paper, executed, under seal, for the husband's benefit, by husband and wife, acknowledged in separate form by the wife, and meant to be a mortgage of her separate lands, but with blanks left for the insertion of the mortgagee's name and the sum borrowed, and to be filled up by the husband, is no deed as respects the wife, when afterwards filled up by the husband and given to a lender of money, though one bonâ fide and without knowledge of the mode of execution. The mortgagee, on cross-bill to a bill of foreclosure, was directed to cancel her name. FOSTER, of Minnesota, being about to engage in some enterprise, and wanting money, asked his wife, who owned, in her separate right, a valuable tract of land in that State, to mortgage it for his benefit. What exactly was said or promised did not appear. However, Foster afterwards went to a notary, who exercised, as it seemed, the business of a scrivener also, and directed him to draw a mortgage of the property, with himself and wife as mortgagors, but leaving the name of the mortgagee, and the sum for which the land was mortgaged, in blank. This the magistrate did. Foster acknowledged the deed, at the magistrate's office, in this shape, and the magistrate then took the instrument to Mrs. Foster, at her husband's house, that she might sign and acknowledge it in the same shape. When the magistrate took the mortgage to her thus to execute, Mrs. Foster said, "she was fearful that the speculation which her husband was going into would not come out right; that she did not like to mortgage that place, but that he wanted to raise a few hundred dollars, or several hundred dollars, or something to that effect,”—the magistrate, who was the witness that gave the testimony, did not recollect the exact expression which she used,"and that she did not like to refuse him, and that so she consented to sign the mortgage." Mrs. Foster, having signed the instrument in this blank shape, the notary, under his hand and seal, certified, in form, that the husband and wife, "the signers and sealers of the foregoing deed," had personally appeared before him, "and acknowledged the signing and sealing thereof to be their voluntary act and deed, for the uses |