Cahall v. Citizens Mutual Building Ass'n

61 Ala. 232 | Ala. | 1878

BBICKELL, C. J.

These causes, involving the same questions, were argued and submitted together. The assignments of error, relatingto the admission of evidence, the giving and refusal of instructions to the. jury, present the same questions — the corporate existence of the appellee, its capacity to hold real estate otherwise than by way of mortgage, or as security for debt, and the sufficiency of the conveyance under which the appellee deduces title to the premises in controversy, to pass the homestead of the grantor.

The conveyance is made directly to the appellant by its corporate name. The general rule is, that whoever contracts with a corporation, in the use of corporate powers and franchises, and within the scope of such powers, is estopped from denying the existence of the corporation, or inquiring into the regularity of the corporate organization, when an enforcement of the contract, or of rights arising under it, is sought. Mont. R. R. Co. v. Hurst, 9 Ala. 513; Marion Savings Bank v. Dunkin, 54 Ala. 471; Lehman, Durr & Co. v. Warner, in manuscript. The appellant concedes this rule, but insists that it can not be applied to a corporation formed under the provisions of a general statute, requiring certain acts to be done before the corporation can be regarded as in existence, and capable of exercising corporate power. Whatever acts the general statute requires should precede incorporation, the argument is, must be shown affirmatively by the appellee, under the plea of nul tiel corporation, or it can not maintain a standing in court. How far in this respect, a distinction can be drawn between a corporation deriving its existence and powers under a special legislative enactment, and a corporation formed under a general enactment, the case does not require us to decide. *

The declaration for the formation of this corporation, signed by the corporators, and which became its charter, recites the title of the corporation, the purposes and objects for which it was formed, the amount of its capital stock, the number of shares into which it was divided, the value of each share, and the time of payment by each shareholder of the capital stock, of the amount he had subscribed. The second section or article of the declaration is in these words : “ The purposes and objects of the association are hereby declared to be, to purchase, hold and convey real estate; to loan money thereon to members of the association for building purposes, to be secured by a lien on the land and buildings; to rent and dispose of such property when acquired, in such form and manner as by the by-laws of the association may be provided.” The fourth section, among other things, provides that the association may proceed to active operations when one hundred shares of the capital stock are subscribed and the first assessment paid. The declaration was signed by subscribers for one hundred shares of the stock, acknowledged by the subscribers before a notary public, who duly certified the same, filed in the office of the judge of probate on the 21st day of September, 1871, in the office of the Secretary of State on the 23d day of September, 1871, and a certified copy recorded in the office of the judge of probate on the 26th day of September, 1871.

It was said there was no law then of force authorizing the formation of a corporation for the purposes and with the powers expressed in the second article of the declaration. The Code of 1867, § 1755, expressly authorized the formation and incorporation of building and loan associations, and as amended by the act of March 3d, 1870, it extended not only to building and loan associations, but to an association for any laioful enterprise, not inconsistent with the constitution and laws of this State. — Pamph. Acts, 1869-70, 308. The formation of corporations under general laws, rather than by special legislative enactment, has been for a number of years past a favorite public policy, as indicated by constitutional provision and legislative enactment. The constitution of 1868, interdicted the creation of corporations for other than municipal purposes, by special act, and in any other mode than by a general law. When the statute amendatory of section 1755 was enacted, there were general laws authorizing the formation of nearly every kind of private corporations. A manifest purpose of this statute expressed not only in the general terms we have quoted, but in the express exclusion from its operation of associations for carrying on gift enterprises, lotteries or games of chance of any hind whatever, was to authorize the incorporation of any association for any lawful business or enterprise. Nor is there any conflict with, or inconsistency between the purposes and objects of this association as expressed in the second section of the declaration, and the provisions of the act of March 3d, 1870, declaratory of the objects, powers, and rights of building and loan associations. — Pamph. Acts 1869-70, p. 444. A power conferred on every private corporation by the statute then existing, was, “ to hold, purchase, dispose of, and convey such real estate as is limited by it's charter; and if not so limited, such an amount as the business of the corporation requires.” B. C. § 1767. The declaratory act in reference to building and loan associations, does not abridge the capacity conferred by this general statute on them as corporations, when incorporated under the general law, to take, and hold, and dispose of, or convey, by lease for a term, or in fee, real estate, so far as it may be limited by its charter, or as its business may require.

The supposed irregularity in the mode of procedure pursued in the organization of the corporation, is, that the original declaration signed by the stockholders should have been recorded in the office of the judge of probate of the county in which it was proposed to carry on business, and that such record was a condition precedent to corporation existence. The Bevised Code of 1867, §§ 1756-7, did require that the declaration should be recorded in the office of the judge of probate, and upon the filing and recording, declared the subscribers became a body corporate, by the name stated therein. There were similar provisions in reference to towns, religions, educational, benevolent and burial societies, mining, quarrying, and manufacturing associations, &c. While turnpike, plank, macadamized, and railroad companies, steamship companies and banking associations were required to file the declarations, which became their charters in connection with the general statutes, in the office of the Secretary of State. These statutory regulations existing, requiring as to some corporations that the declaration should be filed in the office of the judge of probate of the county in which the corporation was to be located, and as to others, that it should be filed in the office of the Secretary of State, the act of November 18th, 1868, entitled “ An act supplementary to the corporation laws of Alabama,” was enacted. — Pamph. Acts 1868, p. 349. The first section requires the application for a charter under any of the general incorporation laws of this State, to be filed with the Secretary of State, and that a certified copy shall be retained for record by the officer before whom such application is made. The filing of the certificate with the Secretary of State, constituted the persons named a body corporate. The fourth section requires all corporations previously formed under the general laws, within sixty days after the passage of the act, to file their certificate of incorporation with the Secretary of State. That the legislature intended this statute as a substitute for all former statutes relating to any and every corporation formed under the general laws, whatever was the purpose of its organization, or the business it was to pursue, is manifest. The difference in former regulations, that some corporations must have filed the declaration or application, (for each term, as used in the Revised Code, and in this statute, means the same thing,) in the office of the judge of probate, and some in the office of the Secretary of State, should be obliterated. The office of the Secretary of State was to become and remain the repository of the original of every declaration or application for incorporation under the general laws. When the declaration or application is for incorporation under a general law which had required the filing and recording in the office of the judge of probate, the judge was required to retain a copy certified by the Secretary of State for record.. A subsequent affirmative statute revising the subject-matter of former statutes, and intended as a substitute for them, is a repeal of the former statutes, though containing no express words to that effect, it is said upon principles well founded in law, reason, and common sense. — Johnson’s Estate, 33 Penn. St. oil; Wakefield v. Phelps, 37 N. H. 295. The act of 1868, not only prescribes a new rule as to the place in which the original declaration of incorporation must be filed, but it extends the rule to the corporations already formed, and in express terms repeals “ all acts or parts of acts in conflict with it.” We can not doubt that the original declaration of incorporation was properly filed in the office of Secretary of State. The copy certified by the Secretary was properly filed and recorded in the office of the judge of probate. A copy of the declaration certified by the Secretary of State, by the third section of the act of 1868, it is declared shall “ be received in all courts and places as the legal evidence of the incorporation of such company.”

The constitution of 1868 forbade the mortgage or other alienation of the homestead, by the owner thereof, if a married man, without the voluntary signature and assent of his wife. The construction which this clause of the constitution received, was, that a conveyance of the homestead by the husband to which the wife did not give her voluntary assent and signature was void at law or in equity, and would not support ejectment against the husband, nor operate against a subsequent conveyance, to which the wife did give her assent and signature. — McGuire v. Van Pelt, 55 Ala. 344. The mode in which the wife should express her assent, and give her signature to the conveyance of the husband, was not prescribed by the constitution. It was left as a matter of legislative regulation. The act of April 23d, 1873, (Pamph. Acts 1872-3, p. 64,) first declared the mode in which the voluntary assent and signature of the wife must be shown. It was settled by several decisions, that if the conveyance A?as executed before this statute, and was acknoAvledged, or its execution proved, and certified, in the mode the statute declared for passing the Avife’s real estate, the voluntary signature and assent of the Avife Avas sufficiently shoAAm. In this mode the present deed Avas acknoAvledged and certified on the second day of May, 1873, in ignorance of the existence of the act of April 23d, 1873. Subsequently, on the 20th June, 1874, the deed was acknowledged before a notary public by the Avife, on a privy examination, and certified by him in the form prescribed. The act of April 23d, 1873, conferred on a supreme, or circuit court judge, chancellor or probate judge, authority to take and certify the examination and acknowledgment of the Avife. But it Avas in this respect amended by the act of December 13th, 1873, (Pamph. Acts 1873, p. 53,) and the like authority Avas conferred on a notary public, or a justice of the peace. The proposition now relied on by the appellant, is, that as the deed was void in its inception, the subsequent examination and acknowledgment of the wife, can not have relation to the day of its execution, nor could it give the deed validity, unless there had been by the husband (of which there was no evidence) a new delivery of it.

The act of April 23d, 1873, is so far as it declares, the mode in which the assent and signature of the wife to the husband’s conveyance of the homestead, is required to be shown, is of the same character as statutes which enable femes covert to convey their real estate, or to relinquish their inchoate rights of dower. The mode prescribed by the statute must be substantially pursued, or the conveyance is inoperative. But if the wife joins in the execution of the conveyance of the husband, and it is not acknowledged or certified in the mode the statute prescribes, the defect may be cured by her making a new acknowledgment in proper form, with a knowledge of the defect and the intent to cure it. — Bishop on Mar. Women, § 597. The same rule should be applied to conveyances of the homestead. Neither the constitution, nor the statutes appoint any particular time within which the wife shall give her assent and signature to the conveyance of the husband, nor does the statute appoint any particular time in which her privy examination and acknowledgment shall be taken and certified. The delivery of the conveyance by the husband may precede or may be subsequent, or cotemporaneous with the signature and assent of the wife, and her examination and acknowledgment. If it precedes, it is necessarily in its nature, whether so expressed or not, conditional, dependent for its effect and operation on the subsequent signature and assent of the wife, the privy examination, acknowledgment, and certificate by the proper officer. When these are obtained, the delivery becomes absolute, the conveyance is perfect, and has relation, the rights of third persons not having intervened, to the delivery by the husband. — Johnson v. McGehee, 1 Ala. 186; Nelson v. Holly, 50 Ala. 3; Hendon v. White, 52 Ala. 597. The privy examination and acknowledgment of the wife, and the certificate thereof in proper form, made with her knowledge, with the intent to cure the defects of the conveyance, imparted validity to it, and it was operative to pass to the appellant, the premises in controversy.

The certificate of the notary could not be impeached, without showing the signature of the wife was forged, or that she was subjected to duress, or that fraud was practiced on her, with the knowledge of the grantee — Miller v. Marx, 55 Ala. 322.

The several rulings of the Circuit Court substantially conform to these views, and we find in them no error prejudicial to the appellant. Each judgment must therefore be affirmed.