Christian v. American Freehold Land Mortgage Co., 89 Ala. 198

Christian v. American Freehold Land Mortgage Co.

89 Ala. 198 | Ala. | 1889

McCLELLAN, J.'

-The questions which the demurrers in this case seek to raise, are those which were passed on in the case of Farrior v. New Eng. Mort. Sec. Co., at this term, 88 Ala. 275. It was there held, that a corporation foreign to the State of Alabama could not transact any business in this State, unless and until it had complied with the provisions of § 4, Art. XIY, of the Constitution,, now also embodied in the act of February 28th, 1887, giving force and effect thereto, and filed in the office of the Secretary of State an instrument in writing, &c., “designating at least one known place of business in this State, and an authorized agent or agents thereat”; and that a mortgage, executed in this State, to a non-resident corporation which had not complied with the constitution and statute, on land situated here, to secure a loan made here, was absolutely void. This case was followed and re-affirmed in that of Mullen v. Amer. Freehold Land Mortg. Co. of London, 88 Ala. 280. And in each of those cases, the facts going to show that the transaction involved took place in Alabama, and was the doing of business here within the constitutional and statutory provisions referred to, were substantially the same as those presented by the present bill and exhibits. We adhere to, and re-affirm the opinions in those cases, and hold that the bill in this case is without equity, if it can be construed as showing, either by averment or the absence of necessary averment, that the complainant, at the time of the transaction in question, had not complied with the law in the matter of designating “a known place of business in this State, and an authorized agent or agents residing thereat.” This presents a question of pleading which does not appear to have been adjudged in either of the cases referred to. The bill shows that the complainant is a foreign corporation, and that the transaction upon which relief is sought was business *200done in this State; but it is silent as to whether it had, at the time of this transaction, or at any other time, complied with our laws as to the designation of a place of business and an agent here. Was it essential that the fact of compliance should have been averred, in such sort that a failure to allege it must be taken as the equivalent of an admission that it does not exist ? It is a fundamental rule of equity pleading, that every fact essential to complainant’s title to maintain the bill and obtain the relief prayed must be stated. — Story’s Eq. PI. § 257; Daniel’s Ch. PI. & Pr. 319. And where it appears from the face of the bill that the complainant’s right to the relief he seeks depends upon some preliminary act by him, the performance of such preliminary act must be averred, or a demurrer will lie. Thus, where the plaintiff claimed as a purchaser of certain shares in a joint-stock company, and it appeared by the bill that by the rules of the association no transfer of shares could be valid unless the transaction was approved by the directors of the company, &c., the bill was held bad on demurrer, because it failed to allege the approval, which its averments sho wed to be essential to complainant’s title and the relief he sought.—Walburn v. Ingilby, 1 M. & K. 61, 77. This is the precise point involved here. The bill presents a case to relief on which it is essential that complainant should have complied with the laws of the State as to the designation of a pi ace of business and an agent thereat. It appears from the bill itself that, without such compliance, the right to that relief does not exist. We entertain no doubt but that the failure to allege the fact of compliance is fatal on demurrer, especially as that fact is peculiarly within the knowledge of the complainant. The averment is a part of “plaintiff’s title to maintain the bill and obtain the relief ” sought. If the bill had not shown that it prayed relief on a transaction which took place in Alabama, the objection could be taken only by answer or plea. It would then have been a matter of defense. But, here, the materiality of the fact omitted appears from the facts alleged, and the omission will be taken — construing the bill most strongly against the complainant — as an admission that the fact does not exist. The demurrer based on the failure of the bill to allege that the complainant, at the time of making the loan, had designated a known place of business in this State, and an agent residing thereat, should have been sustained.—Cockrell v. Gurley, 26 Ala. 405; Reel v. Overall, 39 Ala. 138.

*201Those assignments of demurrer which are predicated on the theory that foreign corporations can not litigate in the courts of this State, unless they have complied with the constitutional and statutory provisions referred to, are untenable, and were properly overruled. The prosecution or defense of an action in the courts of this State is not the doing of business here, within the meaning of the requirement in question. — 2 Mor. Corp. § 662. And the objection which denies the capacity of a foreign corporation, i. e., an alien corporation, to own land, or to take a mortgage on land in this State, even when it has designated a place of business and an agent here, is equally untenable.—Mor. on Corp. §§360, 961; Code, § 1914.

For the error in overruling the assignment of demurrer predicated on the failure of the bill to allege compliance with our laws as to the designation of a place of business and an agent, the decree is reversed, and the cause remanded.

Stone, C. J., dissenting.