97 Tenn. 679 | Tenn. | 1896
In 1892 complainant sold and conveyed to one Sallie D’Armond a lot lying in the town of Johnson City. In the deed executed by him to his vendee, he recited that the full amount of the purchase money had been received by him, when, as a matter of fact, only a part was paid, while the balance was divided into installments falling due in one and two years from the date of the transaction. Some time thereafter, but during the year 1892, Mrs. D’Armond, joining with her husband, executed a mortgage of this property, to secure a loan made to her by the defendant, the United States Building & Loan Association, a corporation organized under the laws of the State of Minnesota. In 1894, after the maturity of the purchase money obligations, this bill was filed to recover the same, asserting a vendor’s lien on the property and asking for a decree enforcing this lien, and also attacking this mortgage as being void and inoperative, upon the ground that at the time of its execution this defendant corporation had not complied with the requirements of Ch. 122 of the Acts of the session of 1891 of the Legislature of this State, requiring registration of its charter in the office of the Secretary of .State, at Nashville, and an abstract thereof in the Register’s office of the county within which the property was situated, and asking that a decree be entered removing this mortgage as an impediment in the way of the clear and successful assertion of complainant’s lien.
The United States Building & Loan Association answered, admitting that it was a foreign corporation, and that at the time' of making the loan to and taking the mortgage from Mrs. D’Armond, it had not complied with the requirements of this Act in question, but averring that, in 1898, and prior to the filing of the bill of complainant, it had done so, and insisting that its mortgage was then a good and enforceable instrument. At the same time the association filed a cross bill, repeating the averments of its answer, and alleging that the mortgagor was in default, and asking that its mortgage might be foreclosed under decree properly entered in this cause. Answers to this cross bill were put in by the various parties in interest, and, upon the issues thus made, the cause was submitted to the Chancellor, who entered a decree, in which he dismissed the original bill in so far as it sought to enforce a vendor’s lien, and the cross bill of the defendant corporation, upon the ground that its mortgage was void by reason of the fact that at the time it was made the corporation was in default in view of the requirements of the Act of 1891. 'From this decree both complainants and the association appealed to this Court. The
At the session of 1895 of the General Assembly of this State, an Act (Ch. 119) was passed entitled “An Act to postpone the foreclosure of certain mortgages or trust deeds, and to validate contracts heretofore made by foreign corporations in this State, where such corporations failed to comply with the requirements of Chs. 95 and 122 of the Acts of 1891, and Ch. 31 of the Acts of 1877, providing that any such corporation desiring to own property or to carry on business in this State, shall tile a copy of its charter in the office of the Secretary of State, and cause an abstract of the same to be recorded in the office of the Register in each county in which such company desires to carry on business or own property,” the first section of which, in substance, provided that where any foreign corporations had been engaged in business, made contracts, or purchased property in this State after the passage of Chs. 95 and 122 of the Acts of 1891, without first complying with these conditions, that all such contracts shall be as valid as if, at the
The case of Cary-Lombard Lumber Co. v. Thomas, 8 Pickle, 593, had called public attention to the fact that a great many foreign corporations, in ignorance of the requirements of the Act of 1891, had been carrying on a large volume of business in this State, out of which many and important contracts had grown, and were still in fieri, and which were put in serious peril as the result of that opinion. To relieve this condition, and to effectuate contracts which both parties supposed to be valid at the time they were made, this legislation was enacted.
This record showing that the defendant corporation had complied with the provisions of Oh. 31 of the Acts of 1877, and also with those of Ohs. 95
We think this conclusion rests on sound reason as well as abundant authority, and that the Court of Chancery Appeals was in error in declining to give the cross complainant the benefit of the curative Act of 1895. ” But it is contended by complainant, Butler, that whatever may be the effect of this statute as between the mortgagor and the mortgagee, it cannot affect his superior right to enforce his vendor’s lien, which was fixed, by the filing of the bill in this cause, at a date prior to its passage. This contention, however, cannot be maintained by him, in view of the finding of the Court
But complainant, Butler, also insists that the defendant corporation is not entitled to the benefit of this curative Act, because it was passed after the entry of the decree of the Chancellor, which conclusively, as it is assumed, settled the rights of these respective parties. This contention is equally unsound. The decree in question was pronounced in the early part of December, 1894, and, in a few days thereafter, was brought by the appeal of the corporation to this Court, and the cause was pending here at the time this Act became operative. The effect of this appeal was to devitalize this decree and to place the cause in this Court as if no decree had ever been pronounced. Gibson’s Suits in Chancery.
The result is, that so much of the decree of the