Gilchrist v. Helena, H.S. & S.R. Co.

• Decision Date: 14 September 1891
• Citation: 47 F. 593
• Parties: GILCHRIST t al. v. HELENA, H.S. & S.R. Co. et al.
• Court: U.S. District Court — District of Montana

47 F. 593

GILCHRIST t al. v. HELENA, H.S. & S.R. Co. et al.

United States Circuit Court, D. Montana.

September 14, 1891

Toole & Wallace and A. K. Barbour, for cross-complainant.

Henry C. Smith, Sterling & Muffly, Walsh & Newman, and T. D. Penry for defendants.

KNOWLES J.

One of the defendants in the above-entitled action, the Northwestern Guaranty Loan Company, filed therein its cross-bill asking for affirmative relief against plaintiffs and all the other defendants. The said defendants have answered this bill. A part of them join in one answer, a part in another answer and John Steadman, J. S. Keerl, and the Helena Steam Heating & Supply Company each in separate answers. In each one of these answers the following allegations are made, to-wit:

'(1) That the Farmers' Loan & Trust Company of New York, in said bill mentioned, has not, and at the time the pretended mortgage was executed had not, filed in the office of the secretary of Montana, or in the office of the clerk and recorder of said Lewis and Clarke county, an authenticated copy of its certificate of incorporation, or a verified and attested statement showing the name of said corporation and the location of its office, the amount of its capital stock, and the amount actually paid in, the amount of its assets, and the cash value thereof, or any of the other statements required by the laws of the state of Montana, and therefore was not qualified or competent to make or enter into a contract within the state of Montana. (2) That said pretended mortgage was not executed, verified, and recorded as provided in the laws of the state of Montana, in that it is not recorded in the office of the clerk and recorder of Lewis and Clarke county, wherein the property is situated, and does not contain the affidavit prescribed by section 1555 of the statutes of Montana. (3) That the said Northwestern Guaranty Loan Company, or the Farmers' Loan & Trust Company, or its assigns, should not be heard to assert, and should not assert, a claim under said pretended mortgage adverse to these defendants, because they accepted said pretended mortgage, and the bonds issued thereunder, with full knowledge of the laws of the state of Montana, which declare and provide that all judgments procured for work and labor performed in and upon the property of any railroad company, or for material furnished for use upon the property of any such company, should and would be a lien on all the property of said railroad company, and would he prior and paramount to the lien of any bond or mortgage upon the property of said railroad company. And the said Farmers' Loan & Trust Company, knowing the provisions of said law, and knowing that if all claims for labor performed or material furnished and used upon the property of said railroad company were not paid, the judgments obtained therefor would be a lien upon all the property of said railroad company, which lien would be prior and paramount to the lien of said pretended mortgage, inserted a claim in said pretended mortgage as follows: 'That said railroad company shall and will also promptly pay, in the ordinary course of business, all moneys due, and all liabilities incurred, for labor, supplies, material, right of way, lands, equipments of every kind done, furnished, acquired, or made for or in connection with the maintenance, operation, renewal, repair, replacement, or improvement of said road, and its branches and appurtenances;' and the said Farmers' Loan & Trust Company thereby acknowledge that all such claims would be liens and take precedence of any lien it could acquire by bond or mortgage; and the said Northwestern Guaranty Loan Company took said bonds, if it purchased them at all, knowing these facts.'

Complainant in the cross-bill filed its objections to each of the above allegations in said several answers. These objections were all argued and submitted together, and the points involved are the same as to each answer. The objection to the first of the above allegations is that the same is immaterial, and not pertinent to any issue presented in the cross-bill. The point sought to be raised by this allegation is that complainant not having filed a copy of its certificate of incorporation, etc., could not make or enter into any contract within the state of Montana, or the territory thereof. There is a statute of this state (see Comp. St. Mont. 1888, Sec. 442, p. 720) which makes it necessary for any foreign corporation, before doing any business of any kind, nature, or description whatever within Montana, to file in the office of the county recorder of the county wherein it intends to carry on or transact business a duly-authenticated copy of its charter or certificate of incorporation, and also certain statements mentioned in said allegation, under oath. It does not appear from any allegations in these answers that the Farmers' Loan & Trust Company is attempting to do business generally in Montana. It does not appear from any allegations in these answers that the farmers' Loan & Trust Company is attempting to do business generally in Montana. It does not appear therein that said Farmers' Loan & Trust Company purchased the bonds above mentioned and described in the cross-bill in Montana, or that...