Guin v. New England Mortg. Sec. Co.

• Decision Date: 24 November 1890
• Citation: 92 Ala. 135,8 So. 388
• Parties: GUIN ET AL. v. NEW ENGLAND MORTGAGE SECURITY CO.
• Court: Alabama Supreme Court

8 So. 388

92 Ala. 135

GUIN ET AL. v. NEW ENGLAND MORTGAGE SECURITY CO.

Supreme Court of Alabama

November 24, 1890

Appeal from chancery court, St. Clair county; S. K. MCSPADDEN Judge.

John W. Inzer, for appellants.

Knox & Bowie, for appellee.

McCLELLAN J.

The bill in this case is filed to foreclose a mortgage. It discloses that the complainant, appellee here, is a foreign corporation, and that the transaction involved, the loan of money secured by notes and mortgage, was the doing of business in this state within our constitutional and statutory provisions requiring such corporations to have a known place of business, and an authorized agent thereat in the state before doing any business here. Const. art. 14, § 4; Acts 1886-87 p. 102; Farrior v. Security Co., 88 Ala. 275, 7 South. Rep. 200; Mullens v. Mortgage Co., 88 Ala. 280, 7 South. Rep. 201. The bill contains no averment that the complainant had, at the time of the transaction, "a known place of business in this state and an agents residing thereat," or that it had ever complied with the law in this respect. This absence of essential averment would have been a fatal defect on demurrer. Christian v. Mortgage Co., 89 Ala. 198, 7 South. Rep. 427. But no demurrer was interposed. Not only so, but the answer contains no allegation that the complainant had not complied with our laws on the subject in question. On the contrary, it avers facts as to one Skaggs being the agent of the corporation, and residing and doing business for it at Talladega, which would possibly be sufficient to constitute that town a known place of business in this state, and himself an authorized agent therein, within the constitutional requirement, which alone obtained and applied when the mortgage and notes were executed, the transaction having occurred before the passage of the act of February 28, 1887. However that may be, it is quite manifest that no question was made in the chancery court as to the capacity of the complainant to make the contract involved in the case, nor passed on by the chancellor. Had the bill been demurred to for the absence of averment that complainant had a place of business, and an agent in the state, it may be the defect could have been cured by amendment. Had the answer alleged a want of compliance with our laws in this respect, it may be that the defense could have been met and overcome by proof to the contrary. In any event, the question cannot be raised for the first time in this court, and the lower court put in error upon a matter not involved in the decree it rendered. An amended answer alleges that complainant, at the time of bill filed, did not have the place of business, and the agent or agents required by the constitution and statute. Whether this was true or not is wholly immaterial. The institution and prosecution of suits is not the doing of business within the provisions in question, but is within the competency of foreign corporations, whether they have a known place of business and an agent thereat or not. Christian v. Mortgage Co., supra.

The defense of usury cannot be sustained in this case. It satisfactorily appears in evidence that the complainant neither received nor contracted for, nor was in any event to receive, more than 8 per cent. upon and for the amount of money it loaned to the defendant, which amount is expressed in and secured by the mortgage as $1,100. What is now asserted to be usury was in reality the expenses of and commissions upon the amount of the loan, all of which were...