Wis. Trust Co. v. Munday

• Decision Date: 16 November 1918
• Parties: WISCONSIN TRUST CO. ET AL. v. MUNDAY ET AL. MUNDAY ET AL. v. WALTER ET AL.
• Court: Wisconsin Supreme Court

168 Wis. 31

169 N.W. 612

WISCONSIN TRUST CO. ET AL.

v.MUNDAY ET AL.

MUNDAY ET AL.

v.WALTER ET AL.

Supreme Court of Wisconsin.

Nov. 16, 1918.

On motion for rehearing. Rehearing denied.

For former opinion, see 168 N. W. 393.

*612ROSENBERRY, J.

We have considered the matters urged upon our attention in the briefs of counsel for appellants in support of the motion for rehearing. While some verbal inaccuracies are disclosed by the hypercritical analysis to which the opinion has been subjected, still, when the opinion is read in connection with the facts and circumstances of the case, these largely, if not entirely, disappear. It was not supposed by the court that the question involved was whether the Legislature intended, by the enactment of subsection 1 of chapter 211 of the laws of 1917, to confirm and validate the titles theretofore attempted to be acquired by all foreign corporations which had not complied with section 1770b. It is perfectly clear that the enactments in question have no application to the acts of those foreign corporations which do not comply, or have been excused from complying, with section 1770b, and that fact is assumed without repetition throughout the opinion. In the opinion (168 N. W. 398) it is said:

“If the Legislature had intended, by the re-enactment of subsection 1 of section 1770j, to confirm and validate the title theretofore attempted to be acquired by all foreign corporations which had not complied with section 1770b,” etc.

In the interest of clearness of expression, there should be inserted, after the words “section 1770b,” the words “at the time of attempting to acquire such title, and which had thereafter complied with section 1770b.”

It is not accurate to say that a foreign corporation which has been excused from complying with section 1770b has in effect complied therewith, as is argued in the opinion. But, nevertheless, after re-examination, we are clearly of the opinion that the Legislature did not, by the re-enactment, in chapter 211 of the Laws of 1917, of sections 1770b and 1770j, intend to do anything except to exempt corporations not organized or conducted for profit from the provisions of section 1770b, and to confirm the title attempted to be acquired by such corporations prior to the enactment of said chapter.

Motion for rehearing denied.

VINJE, J. (dissenting).

I am unable to concur in the view that the amendment to section 1770j of the statutes made by chapter 211 of the Laws of 1917, did not operate to validate the deeds to the Realty Realization Company which had theretofore complied with section 1770b. Briefly stated, my reasons are these: The case of Hanna v. Kelsey Realty Co., 145 Wis. 276, 129 N. W. 1080, 33 L. R. A. (N. S.) 355, 140 Am. St. Rep. 1075, holding that a deed to a foreign corporation that had not complied with section 1770b of our statutes was void, was decided February 21, 1911. No doubt many titles were affected by that decision. To grant relief, chapter 142 of the Laws of 1911 enacted section 1770j which took effect May 13, 1911. That section provided that any corporation which had before the passage of the act complied with section 1770b was relieved from any disability in the previous acquisition of real property in this state, and that a person claiming that the title of any corporation was void because of a failure to comply with section 1770b and the amendment of 1911 might within a year from May 13, 1911, begin an action or set up a defense to declare the title void. If such action or defense was not begun or set up before May 13, 1912, the right thereto expired. In the case of Lanz-Owen Co. v. Garage Equipment Mfg. Co., 151 Wis. 555, 139 N. W. 393, this court construed the act as a statute of limitations within which actions could be begun or defenses interposed to declare the title of noncomplying corporations void, and held that at the end of the year in the absence of any action or defense the title became absolute. Notwithstanding this decision which was handed down January 7, 1913, the Legislature that year amended section 1770j by the *613enactment of chapter 212 which after the title and enacting clause read:

“Section 1. Section 1770j of the statutes is amended to read: Section 1770j. 1. Any corporation organized otherwise than under the laws of this state, having acquired or attempted to acquire, legal title, * * * or lease to any real property in this state, before complying with the terms of section 1770b of the statutes, * * * and which has thereafter, and before the passage of this * * * section, complied with said section, shall be and hereby is relieved from any disability,” etc.

If, as the court construes it, the words “this section” mean section 1770j of the Statutes, and not section 1 of the amendatory act in which they are found, then the amendment of 1913 was entirely nugatory. All titles depending upon conditions existing prior to May 13, 1911, had been fully cured by the act of 1911 as construed in the Lanz-Owen Case. The same nugatory result, except as to non profit-sharing corporations, is true of the amendment of 1917 (chapter 211), which is in the same form as that of 1913. It is true that the law of 1911 says ...