reviving the charter of a corporation after the period of its existence has expired.49 It must be conceded, however, that it is not very clear how, when a charter has expired, and a corporation has thereby been dissolved and ceased to exist,50 it can be said that a statute reviving the charter does not create,-recreate, rather than continue, the corporation. If it creates instead of merely continuing a corporation for one purpose, it must do so for all purposes; and it has been held that such a statute is within a constitutional prohibition against the creation of corporations by special act.51 However this may be, the question is one of intention. A special act of the legislature, whether it is passed before or after the expiration of a charter, and whether it extends or revives the charter, or a general law providing for extension or revival, and proceedings thereunder, cannot be construed as merely continuing the old corporation, instead of creating a new one, if it affirmatively appears that the legislature and the corporators intended the creation of a new corporation.52 "To ascertain," said Mr. Justice Story, "whether a charter created a new corporation, or merely continued the existence of an old one, we must look to its terms and give them a construction consistent with the legislative intent and the intent of the corpor § 4958. Amendment of charter as creating new corporation-In general. As stated in another chapter,54 the mere amendment of the charter of a corporation, either by special act or under a general law, does not destroy the corporation and create a new one, but merely changes the constitution or powers of the old corporation; and therefore it does not in any way affect the existing contract or property rights of the corporation, or its existing obligations.55 But in Kentucky it is held that an amendment of a charter which accomplishes the same purpose as a reorganization creates a new company, 49 See 8414, supra. 50 Infra, chapter on Dissolution. 51 See § 237, supra. Pythias v. Weller, 93 Va. 605, 25 S. 53 Bellows v. Hallowell & A. Bank, 2 Mason 31, 44, Fed. Cas. No. 1,279. 54 Chapter on Amendment of Charters, supra. 52 Bellows v. Hallowell & A. Bank, 2 Mason 31, Fed. Cas. No. 1,279; Fitz v. Minnesota Cent. Ry. Co., 11 Minn. 414; Huff v. Winona & St. P. R. Co., 11 Minn. 180; Marshall v. Western North Carolina R. Co., 92 N. C. 322, 330; Young v. Rollins, 85 N. C. 485, 488; Supreme Lodge Knights of 55 Trustees of University v. Moody, 62 Ala. 389; Johnston v. Crawley, 25 Ga. 316, 71 Am. Dec. 173; Washington College v. Duke, 14 Iowa 14; Dean v. La Motte Lead Co., 59 Mo. 523. at least in so far as to make it subject to laws in force at the date of its birth.56 § 4959. Grant of special charter to an existing corporation. Where a corporation which has been formed under a general law is afterwards granted a charter by a special act, and accepts the same, or a new charter is granted to corporation existing under a special act, this does not necessarily constitute the creation of a new corporation, but may be, in effect, nothing more than an amendment of the original charter.57 § 4960. Mere change in name of corporation. A mere change in the name of a corporation is a mere amendment, and does not in any way affect the identity of the corporation. This has repeatedly been held.58 On the other hand, where a corporation is reincorporated or reorganized, the fact that it retains the name of the old corporation does not make it the same. It is nevertheless an entirely new and distinct corporation, if such is the intention of the legislature and the corporators.5 59 § 4961. Reorganization as dissolution of old company. Whether a reorganization is a dissolution of the company reorganized depends largely upon the nature of the reorganization, and is governed by the rules laid down in the chapter on dissolution.60 Unless otherwise 56 Senn v. Levy, 111 Ky. 318, 63 S. W. 776, followed in Com. v. Licking Valley Bldg. Ass 'n No. 3, 118 Ky. 791, 82 S. W. 435. 57 Johnston v. Crawley, 25 Ga. 316, 71 Am. Dec. 173; Woodfork v. Union Bank of Tennessee, 3 Cold. (Tenn.) 488. Compare, however, Youngblood v. Georgia Improvement Co., 83 Ga. 797, 10 S. E. 124; Snook v. Georgia Improvement Co., 83 Ga. 61, 9 S. E. 1104; Carlisle v. Terre Haute & R. R. Co., 6 Ind. 316. 58 Alabama. Trustees of University' v. Moody, 62 Ala. 389. California. Higgins v. California Petroleum & Asphalt Co., 122 Cal. 373, 55 Pac. 155. Missouri. Dean v. La Motte Lead Co., 59 Mo. 523. New York. First Soc. of Irving M. E. Church v. Brownell, 5 Hun 464. Texas. Acres v. Moyne, 59 Tex. 623. But see Senn v. Levy, 111 Ky. 318, 324, 63 S. W. 776, where it was said that "a corporation exists only in its corporate name, and a change of name was an abandonment, not only of the corporate name but of the corporation itself." 59 Marshall v. Western North Carolina R. Co., 92 N. C. 322. And see Bellows v. Hallowell & A. Bank, 2 Mason 31, Fed. Cas. No. 1,279; Wyman V. Hallowell & Augusta Bank, 14 Mass. 57, 7 Am. Dec. 194; Memphis Water Co. v. Magens, 15 Lea (Tenn.) 37. 60 Chapter on Dissolution, infra. provided by statute, the foreclosure sale of the property and franchises of a corporation and the creation by the purchasers at such sale of a new corporation, do not, alone, work a dissolution of the mortgagor corporation.61 § 4962. Organization of new company as essential to its existence. It has been held that the issuance by the proper state officer of a certificate of incorporation to the purchasers at a judicial sale of the property of a corporation does not of itself create a new company capable of exercising the franchises of the old company, but there must first be an organization under the certificate in the manner prescribed by law.62 XII. RIGHTS, POWERS AND DUTIES OF NEW COMPANY § 4963. In general. When a corporation is created or organized to succeed, by purchase or otherwise, to the property and franchises of another corporation, its powers, franchises, privileges and immunities depend upon the statute by or under which it is created. or formed, and its articles of association, in so far as they are authorized by the statute, just as in any other case.63 It is often expressly provided by the statute that the new corporation shall have the same rights, powers, franchises, privileges and immunities as the old corporation, and these, of course, must be ascertained from the charter or articles of the old corporation,64 including amendments of the charter previously made and accepted by it.65 When 61 Chapter on Dissolution, infra. 62 Watson v. Albany & N. Ry. Co., 110 Ga. 10, 36 S. E. 324, holding there was no organization so as to make the new company liable for negligence before any election of officers, issuance of stock, etc. 63 Savannah v. Steamboat Co. of Georgia, R. M. Charlt. (Ga.) 342. 64 Mulloy v. Nashville & D. R. Co., 8 Lea (Tenn.) 427. Thus, the language of the New York statute as to the effect of reorganizations in connection with forced sales, is that such new corporation "shall be vested with, and be entitled to exercise and enjoy, all the rights, privileges and franchises, which at the time of such sale belonged to, or were vested in the corporation last owning the property sold, or its receiver, and shall be subject to all the provisions, duties and liabilities imposed by law on that corporation." New York Stock Corporation Law, § 9. 65 Where an act amending the charter of a corporation, and providing that it should go into effect if a majority of the stockholders, at their first majority meeting, should agree thereto, was duly accepted, and afterwards a new corporation was chartered with all the rights, powers and privileges, and subject to all the liabilities and restrictions, conferred by the charter of the first corporation, and all the amendments thereto, it was held that the amendment to the charter of the one corporation becomes the successor of another by transfer of its charter under legislative authority, and there is no express provision as to its powers, it can exercise such powers, and such powers only, as were conferred, expressly or impliedly, upon the other corporation.66 And generally, in the absence of any provision to the contrary, a purchaser of the property and franchises of a corporation under legislative authority, either directly from the corporation, or at an execution or foreclosure sale, acquires the same rights, franchises and privileges as were possessed by the corporation, and is subject to the same burdens and restrictions.67 In New York, a certificate of public convenience and necessity from the board of railroad commissioners is not a requisite to enable a company which is the transferee of the purchaser at a foreclosure sale of an interurban railroad, to take over and operate the road.68 84964. Rights as grantee or successor of purchaser. A grantee or successor of the purchaser at judicial sale has all the rights of the original purchaser.69 So, except to the extent that it is entitled to protection as a bona fide purchaser without notice,70 the grantee or successor of the original purchaser is chargeable with the claims or equities available against the original purchaser.71 first corporation became a part of the charter of the new corporation without the action of a majority of the latter's stockholders accepting it at its first regular meeting. Mulloy v. Nashville & D. R. Co., 8 Lea (Tenn.) 427. 66 State v. Newman, 51 La. Ann. 833, 72 Am. St. Rep. 476, 25 So. 408. Ordinarily, the successor of a corporation can exercise only such powers as were conferred on its predecessor, either expressly or by necessary implication. State v. Newman, 51 La. Ann., 833, 72 Am. St. Rep. 476, 25 So. 408. 67 Alabama. Mobile & M. Ry. Co. v. Steiner, 61 Ala. 559. Georgia. Montgomery & W. P. R. Co. v. Boring, 51 Ga. 582. Michigan. Detroit v. Mutual Gaslight Co., 43 Mich. 594, 5 N. W. 1039. Missouri. Daniels v. St. Louis, K. C. & N. R. Co., 62 Mo. 43. Ohio. Campbell v. Marietta & C. R. Co., 23 Ohio St. 188. Pennsylvania. Pennsylvania R. Co. v. Sly, 65 Pa. St. 209. Tennessee. Mulloy v. Nashville & D. R. Co., 8 Lea 427. 68 Syracuse, L. S. & N. R. Co. v. Carrier, 149 N. Y. App. Div. 411, 134 N. Y. Supp. 791. 69 Rogers v. Nashville, C. & St. L. Ry. Co., 91 Fed. 299, 320, holding that a railroad company which had with authority bought another railroad from its purchaser at foreclosure sale possessed the power of the mortgagor company to lease the road. 70 Continental Trust Co. of New York v. American Surety Co., 80 Fed. 180; Vilas v. Page, 106 N. Y. 439, 461, 13 N. E. 743. See also Frazier v. Railroad Co., 88 Tenn. 138, 12 S. W. 537. 71 State v. Iowa Cent. Ry. Co., 83 Iowa 720, 50 N. W. 280, holding that § 4965. What property passes to new company-In general. Only the title which the mortgagor company had passes by a foreclosure sale to the purchaser; 72 and the purchaser takes subject to existing easements.73 The property bought in at the foreclosure sale must be transferred to the new corporation by the foreclosure purchasers, where the purchase is by others in behalf of the new corporation.74 Under the New York statute governing reorganizations, the new company, by the filing of its certificate of incorporation, does not thereby become ipso facto vested with the property acquired at the foreclosure sale.75 The new company, after foreclosure, cannot be deprived of the possession of the books of the old company by a summary order in receivership proceedings against the old company, but instead some proceeding must be instituted against the new company.78 § 4966. Property and rights as dependent on terms of transfer or scope of mortgage. When one corporation sells and transfers its property to another, any question as to what property or rights pass depends, of course, upon the terms of the transfer, assuming that it is valid. And the terms of a mortgage by a corporation determine what property and rights pass to a purchaser at a foreclosure sale under the mortgage. If the transfer or mortgage covers all the assets of the corporation, the purchaser acquires all the assets that are transferable.77 company acquiring title from the purchaser at a judicial sale was a "successor" within the meaning of a decree requiring operation of a specific portion of a railroad; Vilas v. Page, 106 N. Y. 439, 461, 13 N. E. 743. See also State v. Anderson, 91 U. S. 667, 23 L. Ed. 290. 72 Westinghouse Elec. & Mfg. Co. v. New Paltz & P. Traction Co., 32 N. Y. Misc. 132, 65 N. Y. Supp. 644. 73 Hunter v. Burlington, C. R. & N. Ry. Co., 76 Iowa 490, 41 N. W. 305, 84 Iowa 605, 51 N. W. 64; Swan v. Burlington, C. R. & N. R. Co., 72 Iowa 650, 34 N. W. 457. 74 Thayer v. Wathen, 17 Tex. Civ. App. 382, 44 S. W. 906. 75 Mayer v. Metropolitan Traction Co., 165 N. Y. App. Div. 497, 150 N. Y. Supp. 1026. 78 Olmsted v. Rochester & P. R. Co., 46 Hun (N. Y.) 552. 77 Pollard v. Maddox, 28 Ala. 321. When the property of a corporation is sold under a mortgage, no property or rights can pass except such as are covered by the mortgage. Where a railroad company's road and all its rights, privileges, immunities and franchises were sold under a decree foreclosing a mortgage, and the legis lature afterwards incorporated the purchasers, and vested them with all the rights, title, interest, property, possession, claim and demand at law or in equity, of, in, or to such road, with its appurtenances, and with all the rights, powers, immunities, privileges and franchises of the former company, it was held that the new company acquired no title to a judg |