American Bldg., Loan & Tontine Sav. Ass'n v. Haley

• Decision Date: 17 December 1901
• Citation: 31 So. 88,132 Ala. 135
• Court: Alabama Supreme Court
• Parties: AMERICAN BUILDING, LOAN & TONTINE SAVINGS ASS'N v. HALEY ET AL.

31 So. 88

132 Ala. 135

AMERICAN BUILDING, LOAN & TONTINE SAVINGS ASS'N v. HALEY ET AL.

Supreme Court of Alabama

December 17, 1901

Appeal from chancery court, Colbert county; Wm. H. Simpson, Chancellor.

Suit by the American Building, Loan & Tontine Savings Association against Mark R. Haley and others. From a decree sustaining a demurrer to petitioner's bill, it appeals. Reversed.

Cooper & Foster, for appellant.

SHARPE, J.

In Sullivan v. Vernon, 121 Ala. 394, 25 So. 600, it was held that a foreign building and loan association was not entitled to relief upon a bill to foreclose a mortgage taken in the transaction of its corporate business in this state, without alleging its compliance with the conditions as to appointing here a place of business and an agent prescribed by the statute. Code, § 1316 et seq. The absence of such allegation does not, however, subject such a bill to demurrer where the bill does not show on its face that the transaction was had in this state. The principle governing is the same as that which in Collier v. Davis, 94 Ala. 456, 10 So. 86, was applied in condemnation of a plea which set up a similar statute in bar of a suit growing out of a loan by a foreign corporation, and failed to show affirmatively that the contract for the loan was made in this state. The present bill does not, as in the Case of Sullivan, supra, disclose that the mortgage sought to be foreclosed was executed here, or that the transaction giving rise to it was in any part had in this state. That it evidenced an Alabama contract is not presumable merely from the facts that the land was here and the mortgagor resided here, and there is no law which prohibits a foreign corporation to make loans, in the course of business done in its home state, on security consisting of lands in Alabama. Lighting Co. v. Rust, 117 Ala. 680, 23 So. 751.

The demurrer was not appropriate to raise the question of usury, for the reason that it was directed to the bill as a whole, and the bill was framed for foreclosure as to unpaid principal of the sum secured, as well as for charges claimed to be usurious.

The decree sustaining the demurrer will be reversed, and one will be here rendered overruling the demurrer, and allowing 30 days within which the bill may be answered. Let the cause be remanded for further proceedings. Reversed and remanded.