Citizens' Bank of Hattiesburg v. Grigsby
| Decision Date | 11 June 1934 |
| Docket Number | 31273 |
| Citation | 170 Miss. 655,155 So. 684 |
| Parties | CITIZENS' BANK OF HATTIESBURG v. GRIGSBY et al |
| Court | Mississippi Supreme Court |
Suggestion Of Error Overruled July 11, 1934.
APPEAL from circuit court of Forrest county HON. W. J. PACK, Judge.
Action of unlawful detainer by O. C. Grigsby and another against the Citizens' Bank of Hattiesburg. Judgment for plaintiffs and defendant appeals. Affirmed.
Affirmed.
Heidelberg & Roberts, of Hattiesburg, for appellant.
No one is entitled to avail himself or herself of the summary proceeding of unlawful entry and detainer unless he or she falls in the classes as outlined in the statute, section 3456, Code of 1930.
Green McCorkle v. Simon Yarrell et al., 55 Miss. 576; Williams v. Simpson, 70 Miss. 113, 11 So. 689; Taylor v. Orlansky, 92 Miss. 761, 46 So. 50, 136.
Chapter 69 of the Mississippi Code of 1930 provides for a summary remedy for an individual claiming right to possession of property under certain states of fact. There is nothing in any part of this chapter which would indicate that such a summary proceeding is available to an individual who gets title to property with knowledge that some one other than the party through whom he claims is in possession of the property and claims to be owner of the title thereto.
Section 4140 of the Mississippi Code of 1930 deals with the fact that every foreign corporation doing business in the state of Mississippi must file with the secretary of state a written power of attorney designating the said secretary of state or an agent upon whom process may be had in the event of any suit against said corporation.
Section 4165 of the Mississippi Code of 1930, dealing with the powers and responsibility of a foreign corporation, is in part as follows: "And the acts of the agents of any such foreign corporation shall have the same force and validity as the acts of agents of private persons; but such foreign corporations shall not do or commit any act in this state contrary to the laws or policy thereof, and shall not be allowed to recover on any contract made in violation of law or public policy."
Sections 4165 and 4208, Code of 1930.
Our court has held that where a plaintiff in an action of unlawful entry and detainer claims by virtue of a sale under trust deed the defendant can defeat a recovery by showing that he gave plaintiff the trust deed to secure a debt contracted with him while he was conducting a business as a merchant without having paid a sufficient privilege tax.
Williams v. Simpson, 70 Miss. 113, 11 So. 689.
By the common law a contract founded upon an illegal consideration, or one made against public policy, is void, and no action can be maintained hereon.
Bohn v. Lowery, 77 Miss. 424, 27 So. 604.
There is made a part of this record certificates from the secretary of state to the effect that the Hatchie Investment Company, the Union & Planters Bank & Trust Co., and Franklin Bond & Mortgage Company are not qualified to do business in the state of Mississippi, and that said corporations have failed to file a written power of attorney designating a resident agent for the service of process upon such corporations.
One test of whether or not a foreign corporation is "doing business" within the meaning of our statute is whether or not it is doing such acts as are within the function of its corporate powers.
Peterman Construction & Supply Co. v. Blumenfeld, 156 Miss. 55, 125 So. 548.
Whether foreign corporation is doing business within state is largely question of fact to be determined by circumstances of each particular case.
Wiley Electric Co. v. Electric Storage Battery Co., 167 Miss. 842, 147 So. 773; Dodds v. Pyramid Securities Co., Inc., 165 Miss. 269, 147 So. 328.
We cannot see how the court could hold other than that this is a Mississippi contract.
National Mutual Building & Loan Assn. of New York v. Frank V. Brahan, 80 Miss. 407, 31 So. 840; Quartette Music Co. v. Haygood, 108 Miss. 755, 67 So. 211.
The general rule is that when a foreign corporation transacts some substantial part of its originary business in a state, it is doing, transacting, carrying on, or engaging in business therein, within the meaning of the statute.
14-A C. J. 1270, par. 3977; Coburn v. Coke, 69 So. 574; Chattanooga National B. & L. Association v. Denson et al., 47 L.Ed. 870.
Our courts have held that individuals and corporations cannot do indirectly what they are not permitted to do directly.
Houston v. National Mutual Building & Loan Association, 80 Miss. 31.
Neither the trustee's deed nor the deed of Hatchie Investment Company to O. C. Grigsby and J. E. Schwartz are supported by a valid consideration.
Day v. Davis, 64 Miss. 253, 8 So. 203; 2 Devlin on Real Estate, par. 834, page 1501; 18 C. J. 116, par. 42-E.
Under the rules applicable to trusts generally, all persons capable of holding real or personal property may hold as trustees. Persons directly in interest should not, at least not without the knowledge and consent of the debtor, be made trustees in a deed of trust.
41 C. J. 378, par. 174.
J. E. Davis and George W. Currie, both of Hattiesburg, for appellees.
Section 3461 of the Code of 1930 controls in counties not having a county court, but in counties having a county court, the county court has exclusive jurisdiction in all unlawful entry and detainer cases.
Code of 1930, section 693; Miss. State Highway Department v. Haines, 162 Miss. 216, 139 So. 169.
The only effect of a motion to quash original process is to enter the appearance of the defendants to the succeeding term of the court (Code of 1930, section 2999), and this is precisely the practical result in the present case.
This is a suit by the assignees by mesne conveyance of the trustee against the mortgagor and the mortgagor's assignee, and comes within the express provisions of the law.
Marks v. Howard, 70 Miss. 445, 12 So. 145.
The trust deed and note were not void, but created legal rights. It should be noted that a trust deed is not merely a contract, but a defeasible conveyance of real estate. Regardless of the non-compliance of the beneficiary corporation, the trust deed conveyed the legal title of said real estate to the trustee.
Section 4165, Code of 1930; Springfield Grocery Co. v. Devitt, 126 Miss. 169, 88 So. 497; Woodson v. Hopkins, 85 Miss. 165, 183, 37 So. 1010.
The Mississippi Code expressly provides: "All corporations, heretofore or hereafter organized, whether they be domestic or foreign, are hereby authorized and clothed with full power and right to own, in fee simple or otherwise, lands for any legitimate purpose in this state."
There is no Mississippi statute declaring that conveyances to noncomplying corporations shall be void, and that no title shall be acquired thereby; and in the absence of such statute title is acquired, and only the state can complain.
State ex rel. Attorney-General v. Hines Lbr. Co., 106 Miss. 780, 64 So. 459; Middleton v. Georgetown Mercantile Co., 117 Miss. 134, 77 So. 956; 14-A C. J. 1323; Foreign Corporations, 12 R. C. L. 30.
The original trust deed is functus officio, and the defendants cannot be heard to complain.
Corporations, 14-A C. J. 1305; Foreign Corporations, 12 R. C. L., sec. 66; Beale on Foreign Corporations, pages 355-356, 368; Jones on Mortgages (7 Ed.), page 193.
Though a mortgage was originally invalid by reason of the failure of the mortgagee, a foreign corporation, to comply with such laws, after the contract evidenced by the mortgage has been fully executed by a sale and conveyance under the mortgage, the mortgagor cannot thereafter avail himself of the objection.
Jones on Mortgages (7 Ed.), page 194; Grider v. American Freehold Land Mtg. Co., 99 Ala. 281, 12 So. 775; George v. New England Mtg. Security Co., 109 Ala. 548, 20 So. 331.
If the argument of the learned counsel for appellants is sound, the courts should hold that all contracts and mortgages held by unlicensed merchants should be void and unenforceable. But the supreme court of Mississippi has repeatedly held precisely the contrary.
Sullivan v. Ammons, 95 Miss. 196, 48 So. 244; Huddleston v. McMillan Bros., 112 Miss. 168, 72 So. 892; Levinson v. Cox, 127 Miss. 250, 90 So. 1.
Even if the title is acquired in violation of an express statutory prohibition, it is valid as against every one but the state, and the corporation may hold the land subject to the righ of escheat in proceedings by the state.
Foreign Corporations, 12 R. C. L., section 30.
A corporation holding land in a state other than that of its creation, in the absence of restrictions imposed by the laws of the state in which the land is situated, may make any conveyance thereof which its charter authorizes.
Middleton v. Georgetown Mercantile Co., 117 Miss. 134, 77 So. 956; State ex rel. Attorney-General v. Hines Lbr. Co., 106 Miss. 780, 64 So. 729; Corporations, 14-A C. J., page 1323; Foreign Corporations, 12 R. C. L., section 30.
The filing of a suit to obtain possession of lands acquired by a noncomplying foreign corporation is not doing business in Mississippi.
Corporations, 14-A C. J., pages 1273-1274, secs. 3983 and 4008; Foreign Corporations, 12 R. C. L., sec. 28.
The statute does not forbid a nonresident corporation to sell property in the state owned by it, nor require it to file a copy of its charter in the state for the mere purpose of selling specific property.
Long Beach Canning Co. v. Clark, 141 Miss. 171, 106 So. 646.
Argued orally by M. M. Roberts, for appellant, and by Geo. W. Currie, for appellees.
O. C Grigsby and J. E. Schwartz, citizens of Hattiesburg, Mississippi, instituted an...
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