Black v. Caldwell

• Decision Date: 01 November 1897
• Citation: 83 F. 880
• Parties: BLACK v. CALDWELL, Sheriff, et al.
• Court: U.S. District Court — District of Montana

83 F. 880

BLACK v. CALDWELL, Sheriff, et al.

United States Circuit Court, D. Montana.

November 1, 1897

Luce &amp Luce, for plaintiff.

I Parker Veazey, for defendants.

KNOWLES District Judge.

In the bill in this cause it is alleged that the Northwestern Guarantee Loan Company is a foreign corporation, organized under the laws of Minnesota; that on the 25th day of March 1890, said company entered into a contract with Horace T Kelly and Martha I. Kelly, his wife, whereby the two last-named persons made and executed a mortgage to said company upon certain lands in Gallatin county, Mont., to secure the sum of $3,550, with interest at the rate of 10 per cent. per annum; and that this contract was entered into in said Gallatin county. It is also set forth in the bill that previous to the time of entering into said contract, and at no time subsequent thereto, had the said company complied with the provisions of chapter 24, div. 5, of the Compiled Statutes of Montana, in that it had made none of the records required by said chapter in Gallatin county. The provisions of said chapter which apply to the points presented in this case are as follows:

'All foreign incorporations or joint-stock companies organized under the laws of any state or territory of the United States or by virtue of any special act or acts of the legislative assembly of any such state or territory, or of any foreign government, shall before doing any business of any kind, nature or description whatever within this territory, file in the office of the secretary of the territory, and in the office of the county recorder of the county wherein they intend to carry on or transact business, a duly authenticated copy of their charter or certificate of incorporation, and also a statement, to be verified by the oath of the president and secretary of such incorporation and attested by a majority of its board of directors, showing: First. The name of such incorporation and the location of its principal office or place of business within this territory, and if it is to have any place of business or principal office within this territory, the location thereof. Second. The amount of its capital stock. Third. The amount of its capital stock actually paid in money. Fourth. The amount of its capital stock paid in any other way, and in what. Fifth. The amount of the assets of the incorporation, and of what the assets consists, with the actual cash value thereof. Sixth. The liabilities of such incorporation, and if any of its indebtedness is secured, how secured, and upon what property. Such incorporation of joint-stock company shall also file at the same time and in the same office, a certificate under the seal of the corporation and the signature of its president, vice-president or other acting head, and its secretary, if there by one, certifying that the said corporation has consented to be sued in the courts of this territory upon all causes of action arising against it in this territory, and that service of process may be made upon some person, a citizen of this territory whose name and place of resident shall be designated in such certificate and that process when so served upon such agent, shall be taken, deemed and held to be as valid to all intents and purposes as if served upon the company in the state or territory under the laws of which it is organized.'

'Sec. 443. Written consent of the person so designated to act as such agent, shall also be filed in the like manner, and such designation shall remain in force until the filing in the same office of a written revocation thereof, or of the consent executed in like manner.'

The word 'territory,' so far as the same applied to Montana, was changed by the constitution of the state to the word 'state.'

Section 444 of this chapter provides that any contract entered into by any corporation who has failed to comply with the provisions of the above statute shall be void and invalid as to such corporation.

The claim is that none of the requirements of this statute were complied with in Gallatin county. In the argument of the case it was conceded that said corporation had complied within Lewis and Clarke county, Mont., with said statute. Subsequently, the attorneys for the respective parties to this action filed a stipulation which makes the following statement of facts a part of the bill herein:

'Prior to the making of the loan to Horace T. Kelly and wife, or the acceptance of the said Kelly note or mortgage referred to in the plaintiff's complaint, and before doing business of any kind in the territory or state of Montana, the Northwestern Guarantee Loan Company filed in the office of the secretary of state and of the county clerk and recorded of Lewis and Clarke county all of the papers provided for and required to be filed by foreign corporations, under chapter 24 of the Complied Statutes of Montana; and in the verified statement so filed by said company the principal place of business or principal office of the company within the territory of Montana is declared to be located at the city of Helena, in the said county of Lewis and Clarke, but the said company has never at any time filed in the office of the county recorder of the county of Gallatin any of the papers specified in said chapter 24 of the Compiled Statutes of Montana, nor has the industrial Trust Company (one of the defendants in this cause) ever at any time filed any of the papers provided in the said chapter 24, either in the office of the secretary of state of Montana, or in any office of the county clerk and recorder of any county in the territory or state of Montana.'

The bill further sets forth that on the 1st day of April, 1892, the said Northwestern Guarantee Loan Company sold and assigned said mortgage, executed as aforesaid to it, to the defendant the Industrial Trust Company; and that said Industrial Trust Company, prior to the 1st day of April, had not complied with the aforesaid provisions of the aforesaid chapter 24; and that prior to said date said trust company was doing business in Montana, and at the said date, and since the same, was so engaged, and is attempting to enforce and collect divers and numerous notes, mortgages, and contracts made to and with said Northwestern Guarantee Loan Company in its business of loaning money. It is then set forth that said Industrial Trust Company commenced suit against the said Kelly and wife, Catherine Callum, and William B. Thompson to foreclose said mortgage, and on the 6th day of July, 1895, obtained a decree of foreclosure of the same for the sum of $4,801.50; that afterwards White Caldwell, under an order of said sale, issued from the court in which said decree was rendered, sold, as sheriff of Gallatin County, said real estate in said mortgage mentioned, to the said Industrial Trust Company, and issued to said company a certificate of sale of said land; that, by virtue of this certificate of sale, said trust company claims some rights or interest in said land. It is further set forth that the court had no jurisdiction to order the aforesaid sale, and that the contract of purchase by said trust company is void. The plaintiff alleges that he is the owner in fee of this land, and prays that he may have a decree declaring the same, and that the said mortgage be declared canceled, and the Industrial Trust Company be enjoined from claiming any right, title, or interest in the said lands, and that the sheriff, Caldwell, be enjoined from making a deed to said trust company for said land. The defendants demurred to said bill, on the ground that it does not state facts sufficient to constitute a cause of action; in other words, that the same does not state any grounds for the equitable relief prayed for.

The legal questions presented in this case are as follows: (1) Was the Northwestern Guarantee Loan Company required, under the statute law of Montana, to file the statement required of foreign corporations by said chapter 24 in Gallatin county, although it had filed such statement in Lewis and Clarke county? (2) What was the effect of the decree of foreclosure entered against Kelly and wife and others as to the validity of the mortgage made to the Northwestern Guarantee Loan Company, and as to the validity of the assignment of the said mortgage to the said Industrial Trust Company? (3) Was the Industrial Trust Company, on account of having failed to file any of the statements required by said chapter 24, precluded from having said land specified in the mortgage sold, and from bidding in the same at said foreclosure sale?

In looking at the 442d section of chapter 24, Comp. Laws Mont., it will be observed that foreign corporations are to make the statement and record required thereby 'in the office of the secretary of the territory, and in the office of the county recorder of the county wherein they intend to carry on or transact business,' and the statement shall state the 'principal office or place of business. ' There is no requirement that the record shall be made in every county wherein the said corporation may transact any business.

In the case of Cowell V. Springs Co., 100 U.S. 55, the supreme court said:

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