Babbitt v. Field

52 P. 775 | Ariz. | 1898

DAVIS, J.

This was an action commenced on August 18, 1896, to foreclose a trust-deed covering certain real property upon which the appellant claims to hold a mortgage subsequent in date. The trust-deed was made in the territory of Arizona by the defendants, J. F. Daggs and wife, to S. M. Folsom, as trustee for the New Mexico Savings Bank and Trust Company, and to secure a loan made by the said company to the said Daggs. The foreclosure suit was brought by Neill B. Field, as receiver of tbe said company, and tbe said Folsom was also joined as a party plaintiff. The appellant answered separately, with six defenses, viz.: First, by plea in abatement that another action was pending between the same plaintiffs and the defendant mortgagors for the same canse, the first defense also setting np a subsequent mortgage from said Daggs and wife to appellant, but ashing no affirmative relief thereon; second, by demurrer to complaint that the plaintiffs were not entitled to recover in the capacity in which they had respectively sued; third and fourth, that the contract could not be enforced because the New Mexico Savings Bank and Trust 'Company was a foreign corporation organized for the purpose, among others, “of engaging in and carrying on business . . . within the territory of Arizona”; that it had failed to comply with the requirements of chapter 7 of title 12 of the Revised Statutes, and that its acts in contracting the indebtedness sued for were void; fifth, that in a prior action (the action referred to in the plea of abatement in the first defense) for the foreclosure of the same deed of trust the plaintiffs had already obtained a decree of foreclosure, in pursuance of which there had been a sale of the property and at which they were the purchasers; sixth, that in the month of January, 1893, the said S. M. Folsom, president of the New Mexico Savings Bank and Trust Company, had entered into an agreement (not averred to be in writing) with the defendant J. F. Daggs, for and on behalf of said company, to release lot 7, in block 5, town of Flagstaff, from the lien and operation of said trust-deed, in consideration that Daggs would erect certain buildings on other parts of the property; that said Daggs performed his part of the agreement by the erection of said buildings, and thereafter sold and conveyed said lot No. 7 to the defendants M. Y. and L. S. Drum, from whom, with knowledge of said agreement and relying thereon, the appellant had taken a mortgage upon said lot. The plaintiffs demurred to each of appellant’s defenses and to his answer as a whole. The court overruled the appellant’s demurrer, and sustained the demurrers of the plaintiffs. The appellant refusing to amend, judgment was entered in favor of the appellees, and the case is here on appeal from the said orders and judgment of the'lower court.

The first proposition urged by the appellant for a reversal is based upon the court’s ruling in sustaining the demurrer to his plea that another action was pending between the same parties, involving the same subject-matter; and there is also an assignment of error grounded upon the court’s ruling in sustaining the demurrer to the fifth defense, setting up this alleged former suit and the decree rendered therein as a bar to the present action. Appended to the answer of appellant, and referred to therein as exhibits, are copies of the several parts of the record in the other proceeding. These show that, in vacation, on the fifth day of July, 1895, a complaint was filed by these appellees in the office of the clerk of the district court of Coconino County against the said defendants J. F. Daggs and wife for the foreclosure of the same deed of trust which is the subject of the litigation in the case at bar; that there was also filed at the same time an instrument of writing purporting to be an entry of appearance by said defendants and a stipulation for judgment; that while said court was at vacation a form of judgment and decree was entered therein over the following attestation: “Done in vacation, this 8th day of July, 1895. • Jno. J. Hawkins, Judge of said District Court.” It further appears that in pursuance of said pretended judgment and decree an order of sale was issued, under which the property described in said deed of trust was advertised by the sheriff, offered for sale, and declared sold to these appellees. It manifestly appears from the record as pleaded that the judgment and decree entered in the other proceeding are not voidable, but absolutely void. It was the decree of the judge, and not of the court, and no rights were either acquired or devested by it. Under the Organic Act and the statutes of the territory, the court, and not the judge, has jurisdiction to foreclose mortgages. The appellant was not a party to the other proceeding, could not have been affected by it, and was, we think, properly denied the right to plead it either in abatement or in bar of this action. The appellant alleges error in the court’s ruling sustaining the demurrer to the third and fourth defenses of his answer. For the support of these defenses reliance is had upon the provisions of chapter 7 of title 12 of the Revised Statutes, which require every association, company, or corporation organized or incorporated under the laws of any other state, territory, or country, for the purpose of engaging in or carrying on business within this territory, fo file with the secretary of the territory and the county recorder of the county in which its business is located authenticated copies of its articles of incorporation, and the appointment of an agent upon whom notices and process may be served, and declares that every act done prior to compliance with these requirements shall be utterly void. A copy of the articles of incorporation of the New Mexico Savings Bank and Trust Company is attached to and made a part of appellant’s answer. The articles show that the corporation was organized for the purpose of carrying on a banking business at Albuquerque, in the territory of New Mexico, and they fail to disclose any purpose of carrying on business in the territory of Arizona. The answer does not allege any place within the latter territory at which the corporation has undertaken or proposed to locate its business, but pleads a single act of business as transacted therein. So far as appears by the record, the company had no principal office or any place of business whatever in the territory of Arizona, and the making of the contract set out in the complaint was the only business ever done by it in the territory. The doing of a single act of business in the territory by a foreign corporation does not constitute the carrying on of business, within the reasonable construction of the provisions of the chapter relied upon. Manufacturing Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739. We do not find upon an examination of the several points raised by appellant in his brief that reversible error was committed by the trial court, and the judgment is therefore affirmed.

Street, C. J., Sloan, J., and Doan, J., concur.