Ashurst v. Arnold-Henegar-Doyle Co.
| Decision Date | 23 March 1918 |
| Docket Number | 5 Div. 652 |
| Citation | 201 Ala. 480,78 So. 386 |
| Parties | ASHURST v. ARNOLD-HENEGAR-DOYLE CO. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.
Action by the Arnold-Henegar-Doyle Company against Harry G. Ashurst. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
James W. Strother, of Dadeville, for appellant.
Thomas L. Bulger, of Dadeville, for appellee.
This suit, which is one in the nature of ejectment, was tried by the court without a jury and resulted in a judgment for the plaintiff.
Suing for the storehouse and lot described in the complaint plaintiff rested his right of recovery on a sheriff's deed. Defendant pleaded: (1) Not guilty; (2) that plaintiff is not a corporation, and defendant has not dealt with plaintiff as such; (3) that plaintiff has not complied with the laws of the state of Alabama by filing in the office of Secretary of State a statement in writing designating at least one known place of business in said state with an agent or agents therein authorized to do business in the state, and that plaintiff was therefore without authority to do business or to own property in the state of Alabama.
The foregoing pleas were filed on September 21, 1916. Two days later, defendant filed an additional plea, designated "A," by which "he disclaims possession of all the land sued for except that part of said land on which the storehouse is located."
The judgment entry fails to disclose leave of the court to withdraw the plea of not guilty as to that part of the land possession of which was disclaimed by plea A. The bill of exceptions, however, contains a recital of such amendment by leave of the court, and we will treat the amendment as having been so authorized.
Defendant objected severally to the introduction in evidence of the judgment in the case of Arnold-Henegar-Doyle Company v. A.J. Weldon, of the certificate of that judgment as provided by the statute, of the execution which issued thereon, of the sheriff's return of his levy of said execution on the lands in question, of the sheriff's notice to A.J. Weldon of the levy of the execution, of the return on the execution by the sheriff of the fact of the sale of the property to the plaintiff, and of the sheriff's deed of date July 12, 1916, conveying said lands to the plaintiff. These objections are without merit. Mere irregularities in sales by the sheriff--such as the failure to give the statutory notice of the time and place of the sale--will not authorize the vacating of a sale, nor render defective the title of the purchaser. Ray's Adm'r v. Womble, 56 Ala. 32, 37; Holly v. Bass, 68 Ala. 206; White v. Farley, 81 Ala. 563, 566, 8 So. 215; Gardner v. Mobile & N.R.R. Co., 102 Ala. 635, 642, 15 So. 271, 48 Am.St.Rep. 84; Slater v. Alston, 103 Ala. 605, 608, 15 So. 944, 49 Am.St.Rep. 55.
It is true that the plaintiff in ejectment, in order to show a prima facie right of recovery, must introduce in evidence a regular chain of title back to some grantor in possession or to the government. Smith v. Bachus, 195 Ala. 8, 70 So. 261; Driver v. King, 145 Ala. 585, 591, 40 So. 315.
The evidence in this case was sufficient to establish this prima facie right of recovery in plaintiff. A.J. Weldon was the judgment debtor in possession of the land, exercising acts of ownership over it, and claiming to own the same, before or about the time when the levy was made and the sale was had thereunder to the plaintiff. He had been in such possession for several years, one witness testifying that during the previous seven or eight years he was so exercising ownership over this property and conducting his mill business thereon. Smith v. Bachus, 195 Ala. 8, 70 So. 261.
Plaintiff offered as muniments of his title a valid judgment against said Weldon, showing due execution thereon after recordation under the statute, the sheriff's levy, with notice thereof to Weldon, and proof of the consummation of the sale, and the sheriff's deed to plaintiff as purchaser at said sale. Thus is plaintiff's chain of title established, by prima facie evidence at least, to and from a grantor in possession of the land. And the proof establishes the prima facie fact of an estate or interest in the land, in Weldon, which was subject to levy and sale. Carter v. Smith, 142 Ala. 414, 38 So. 184, 110 Am.St.Rep. 36.
Plaintiff's motion to strike defendant's pleas Nos. 2 and 3 was granted by the court, and that action of the court is assigned as reversible error.
The complaint filed by the Arnold-Henegar-Doyle Company, a corporation, does not disclose whether it was a foreign or a domestic corporation. Plea 2 avers that plaintiff is not a corporation, and that defendant has not dealt with plaintiff as such. Third plea fails to aver that the plaintiff is a foreign corporation that has not complied with the laws of the state of Alabama as to doing business in Alabama. This fact should have been pleaded by direct averment, and not by way of implication.
In George M. Muller Mfg. Co. v. First National Bank of Dothan, 176 Ala. 229, 57 So. 762, it is said (Chief Justice Anderson writing the opinion):
"A foreign corporation which has not complied with the requirements of sections 3642 and 3644 of the Code of 1907 is prohibited from doing a single act of business in this state, if done in the exercise of its corporate function, and said corporation cannot sue in this state until it has put itself in a position to be sued therein by complying with said sections of the Code."
Since the complaint did not aver that the plaintiff was a foreign corporation, it was incumbent on the defendant to specifically aver in his plea--and he will not be permitted to do so merely by way of implication--that the plaintiff was a foreign corporation that did business in the state, in the transaction on which the suit is predicated, without having first complied with the Constitution and the statute.
A corporation created in another state may sue in the courts of this state. Lucas v. Bank of Georgia, 2 Stew. 147; Eslava v. Ames Plow Co., 47 Ala. 384; Imp. & Exp. Co. v. Locke, 50 Ala. 332. The institution and prosecution of a suit in Alabama by a foreign corporation, without more, is held not to be a prohibited act of business therein; and an action may be brought by such a corporation without having a place of business and an authorized agent in the state. Beard v. U. & A.Pub. Co., 71 Ala. 60; Christian v. A.F.L.M. Co., 89 Ala. 198, 7 So. 427; Ginn v. N.E. Mort. & Sec. Co., 92 Ala. 135, 137, 8 So. 388; Cook v. Rome Brick Co., 98 Ala. 409, 12 So. 918; McCall v. A.F.L.M. Co., 99 Ala. 427, 432, 12 So. 806; Woodall & Sons v. People's National Bank, 153 Ala. 576, 45 So. 194, Worth v. Knickerbocker Trust Co., 171 Ala. 621, 55 So. 144; 2 Mor. Corp. § 662; Charter Oak Life Ins. Co. v. Sawyer, 44 Wis. 387; Utley v. Clark-Gardner Lode Min. Co., 4 Colo. 369.
It is insisted by appellant that the foregoing excerpt from the opinion in George M. Muller Mfg. Co. v. First Nat. Bank of Dothan, 176 Ala. 229, 231, 57 So. 762, is to the contrary effect. When that general statement is considered, as applying to the question for decision, it is apparent that decision did not overrule the foregoing authorities on the right of a foreign corporation to sue in this state on a contract not made in violation of the Constitution and the statutes of the state. The court said:
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