Christian v. American Freehold Land & Mortgage Co.

• Decision Date: 10 April 1890
• Citation: 7 So. 427,89 Ala. 198
• Parties: CHRISTIAN ET AL. v. AMERICAN FREEHOLD LAND & MORTGAGE CO.
• Court: Alabama Supreme Court

7 So. 427

89 Ala. 198

CHRISTIAN ET AL. v. AMERICAN FREEHOLD LAND & MORTGAGE CO.

Supreme Court of Alabama

April 10, 1890

Appeal from chancery court, Perry county; THOMAS W. COLEMAN Chancellor.

Bill in equity by the American Freehold Land & Mortgage Company against J. B. Christian and others to have a lien declared on certain described lands in payment of several promissory notes made by defendants to complainant, and secured by a mortgage. The notes were given for money loaned to defendants by complainant. Defendants demurred on the ground that the bill did not show by averment that complainant had complied with the constitutional and statutory requirements, and upon other grounds sufficiently shown by the opinion. The court overruled these demurrers, and defendants appeal.

John F. Vary and H. C. Semple, for appellants.

ttus & Pettus, for appellee.

MCCLELLAN J.

The questions which the demurrers in this case seek to raise are those which were passed on in the case of Farrior v Security Co., ante, 200, (at this term.) It was there held that a corporation foreign to the statute of Alabama could not transact any business in this state unless and until it had complied with the provisions of section 4, art. 14, of the constitution, now also embodied in the act of February 28, 1887, giving force and effect thereto, and filed in the office of the secretary of state an instrument in writing, etc., "designating at least one known place of business in this state, and an authorized agent or agents thereat," and that a mortgage executed in this state to a non-resident corporation, which had not complied with the constitution and statute, on land situated here, to secure a loan made here, was absolutely void. This case was followed and reaffirmed in that of Mullens v. Mortgage Co., ante, 201; and in each of those cases the facts, going to show that the transaction involved took place in Alabama, and was the doing of business here, within the constitutional and statutory provisions referred to, were substantially the same as those presented by the present bill and exhibit. We adhere to and reaffirmed the opinions in those cases, and hold that the bill in this case is without equity, if it can be construed as showing, either by averment or the absence of necessary averment, that the complainant, at the time of the transaction in question, had not complied with the law in the matter of designating "a known place of business in this state, and an authorized agent or agents residing thereat."

This presents a question of pleading, which does not appear to have been adjudged in either of the cases referred to. The bill shows that the complainant is a foreign corporation, and that the transaction upon which relief is sought was business done in this state; but it is silent as to whether it had at the time of this transaction, or at any other time, complied with our laws as to the designation of a place of business and an agent here. Was it essential that the fact of compliance should have been averred, in such sort that a failure to allege it must be taken as the equivalent of an admission that it does not exist? It is a fundamental rule of equity pleading that every fact essential to complainant's title to maintain the bill and obtain the relief prayed must be...