117 Wis. 446 | Wis. | 1903
It is contended that the mortgage is void as to the homestead on the ground that it was never executed or acknowledged by Mrs. J ones. The claim is that at the request of her husband she was induced to sign a blank form of mortgage on his representation that it was to be used for the accommodation of the bank and did not concern her in any way; and that subsequently, and without her knowledge or consent and in her absence, it was filled up and signed by the
2. It is claimed that the mortgage is void because taken in a business prohibited by law. The certificate of incorporation, issued in 1882, in pursuance of the statute, stated that the association would terminate July 15, 1887. Subsec. 19, sec. 2024, Stats. 1898. The statute also declared that “no person or association shall commence or carry on the business aforesaid until such person or association shall have complied with the provisions of this act.” Subsec. 21, Id. It will be observed that none of the provisions of the statute declare such contract void, nor impose a penalty for doing such business. Another provision of the statute declares that:
“All corporations whose term of existence shall expire by their own limitation . . . shall nevertheless continue to be bodies corporate for three years thereafter for the purpose of prosecuting and defending actions and of enabling them to settle and close up their business, dispose of and convey their property and divide their capital stock, and for no other purpose.” Sec. 1764, Stats. 1898.
In support of the construction and the effect which it is claimed should be given to these statutes, counsel cité certain decisions of this court. In the earliest case cited it was held, in effect, that a foreign insurance company, which had attempted to do business in this state in violation of'the statute, which imposed a penalty for noncompliance, could not maintain an action upon a contract made with the company; and this was put on the ground that “a statute which imposes a penalty for doing an act, except as prescribed, amounts to a prohibition to do the act otherwise, and a contract for its performance is void.” Ætna Ins. Co. v. Harvey, 11 Wis. 394. See Washburn Mill Co. v. Bartlett, 3 N. D. 138, 54 N. W. 544, 545. The other cases in this court cited by counsel involve the effect of a prohibition in the statute coupled with a penalty. Brower v. Haight, 18 Wis. 102; Melchoir v. Mc
“A party who enters into a, written contract with a body purporting to be a corporation, in which it is described by its corporate name, solemnly admits the existence of the corporation for the purposes of a suit brought to enforce the obligation, and in such an action he will not be permitted to plead nul tiel corporation, or otherwise to deny the corporate existence of the plaintiff.” 1 Thompson, Com. Law Corp. § 518, citing a large number of cases in support of the rule stated, and giving illustrations in the following sections.
“A person who contracts with a corporation, whether it be by a subscription to its stock, or by promissory note, bond, mortgage, or other form of contract, is, in a suit upon such contract, estopped to deny the existence of the corporation; and similarly, where a body of persons hold themselves out as a corporation and contract as such, they will be estopped to deny their corporate character.” 7 Am. & Eng. Ency. of Law (2d ed.) 668.
It has been held by the supreme court of the United States that “one who contracts with a corporation as such cannot afterwards avoid the obligations so assumed by him on the ground that the supposed corporation was not one de jure.” Andes v. Ely, 158 U. S. 312. See, also, Dooley v. Cheshire G. Co. 15 Gray, 494; Beal v. Bass, 86 Me. 325, 29 Atl. 1088; Scheufler v. Grand Lodge, A. O. U. W. 45 Minn. 256, 47 N. W. 799; Snider's Sons’ Co. v. Troy, 91 Ala. 224, 8 South. 658, 24 Am. St. Rep. 887; Bank of Shasta v. Boyd, 99 Cal. 604, 34 Pac. 337. In this last case it was held that:
“A mortgagor of property, who has dealt with the mortgagee as a corporation, and received from it the consideration of the mortgage note, is estopped from denying its corporate capacity in an action by the corporation to foreclose the mortgage.”
In a recent case in this state it was held that:
“Where a person deals with an association of individuals as a corporation, such dealing, by estoppel, as to such transaction, fixes the status of the company to be what, it was represented and recognized to be therein.” Clausen v. Head, 110 Wis. 405, 85 N. W. 1028.
Without determining whether the payee of the note and mortgage was, at the time of their execution, a de facto corporation within the meaning of the authorities, yet we are constrained to hold that both Mr. and Mrs. Jones, by the execution and delivery of the mortgage, are estopped from
By the Oourt. — The judgment of the circuit court is affirmed.