Sullivan v. Vernon

• Decision Date: 11 April 1899
• Citation: 121 Ala. 393,25 So. 600
• Parties: SULLIVAN v. VERNON ET AL.
• Court: Alabama Supreme Court

25 So. 600

121 Ala. 393

SULLIVAN v. VERNON ET AL.

Supreme Court of Alabama

April 11, 1899

Appeal from chancery court, Dekalb county; S. K. McSpadden Chancellor.

Bill bye W. K. Sullivan, receiver of the American Building, Loan &amp Investment Society, against James M. Vernon and others. There was a decree dismissing the bill, and complainant appeals. Affirmed.

James Norfleet, for appellant.

L. L Cochran, for appellees.

PER CURIAM.

The original bill was filed to foreclose a mortgage executed in this state, on real estate here situate, to secure the payment of a debt contracted with the American Building, Loan & Investment Society, a corporation organized and existing under the laws of the state of Illinois. A motion was made to dismiss the bill for want of equity, because it did not aver that, at the time of the execution of the mortgage, the corporation had filed in the office of the secretary of state, pursuant to the statute approved February 28, 1887 (Pamph. Acts 1886-88, p. 102), an instrument in writing designating for itself, at least, one known place of business in the state and an authorized agent thereat residing. The motion was sustained, but leave was granted to amend within 30 days. From the decree sustaining the motion, this appeal is taken.

Const art. 14, § 4, prohibits a foreign corporation from doing any business in this state without having at least one known place of business and an authorized agent or agents therein. The statute to which we have referred was enacted in aid and execution of the constitution. The uniform construction of the constitution has been that it is prohibitory, rendering it unlawful for a foreign corporation, without compliance with its conditions, to transact any business here, and that all contracts into which it might enter, while executory, requiring the aid of the courts to enforce them, are void; and it is a settled rule of pleading in equity that a bill for the enforcement of such contracts is demurrable, unless it contains an express averment that, at the time of making such contract, the corporation had a known place of business in the state and an authorized agent therein. Farrior v. New England Mortg. Security Co., 88 Ala. 275, 7 So. 200; Mullens v. American Freehold Land Mortg. Co., 88 Ala. 280, 7 So. 201; Christian v. Same, 89 Ala. 198, 7 So. 427; Ginn v. New England Mortg. Security Co., 92 Ala. 135, 8 So. 388. We have not apprehended that it was intended to overrule or depart from these cases by the decision in Nelms v. Edinburgh-American Land Mortg. Co., 92 Ala. 157, 9 So. 141. Upon that point, the opinion manifests a difference of opinion among the members of the court as then constituted, some dissenting from the rule of pleading declared in the cases to which reference has been made. The precise question we have here under consideration was presented neither by the pleadings nor by the facts in that case. It shows that only two grounds of demurrer to the bill were considered by the court, and neither of which presented the question now before us. The first ground of demurrer was that the bill fails to sufficiently aver facts to show that the "agent designated" had authority to exercise or perform any of the corporate functions or powers of the corporation; and (2) "for that the bill fails to show that the corporation by its charter was authorized to engage in the business of loaning money and securing the same by mortgages on land in Alabama." In fact, the bill in that case distinctly averred a compliance, on the part of the complainant corporation, with the constitutional and statutory requirements as to foreign corporations having a known place of business, and a designated agent thereat, within the state. It follows, therefore, that what was said in that case, as to dissenting from the rule laid down by this court in the cases of Farrior v. New England Mortg. Security Co., and ...