2 S.D. 164 | S.D. | 1891
Plaintiff’s complaint states the following facts as constituting his cause of action: (1) That the Middle-sex Banking Company is a corporation organized under the laws of the State of Connecticut, and that its general business is loaning money, and taking as security therefor mortgages upon real estate in South Dakota and' other states and territories. (2) That the Union Investment Company is a corporation organized under the laws of the State of Minnesota, and that its general business, as set forth in its articles of incorporation, is to buy, hold, improve, lease, sell, and deal in lands, tenements, and hereditaments, and any property, real, personal or mixed, wherever situated;’ to subdivide, plat, and lay out lands into towns, additions and building grounds; and that its principal place of business is the city of St. Paul, Minn. (3) That in May, 1887, the said Middlesex Banking Company loaned to one James a sum of money, and took as security therefor a mortgage upon real estate, therein particularly described, in Beadle county, then Territory of Dakota, now State of South Dakota. That upon default in the payment of said mortgage the said company caused the same to be foreclosed, and to protect its interests purchased said mortgaged premises at such foreclosure sale, and through said foreclosure proceedings became the owner in fee-simple of said lands. (4) That after-wards, in December, 1889, the said Middlesex Banking Company, by deed in all respects in proper form, acknowledged and delivered, attempted to convey said lands in fee-simple to said Union Investment Company, which deed was recorded in the office of the register of deeds of said Beadle county December 15, 1889; and that said Union Investment Company made said pretended purchase of said lands for the sole purpose of speculation and profit. (5) That in September, 1890, the said Union Investment Company executed in due form its deed of said lands, by which it undertook to convey the same to the de
Said Section 7, Article 17, of the constitution, is as follows: “No corporation shall engage in any business other than that expressly authorized in its charter, nor shall it take or hold any real estate except such as may be necessary and proper for its legitimate business.”
The plaintiff derived his title directly, and the defendant his indirectly, from the same source, — the Middlesex Banking Company. If that company had power to convey to plaintiff the title which he asserts and seeks to maintain as the foundation of this action, it had the power to convey to the Union Trust Company, unless the latter company-was incapaciated to take the title, and for that reason the attempt to convey failed for want of a competent grantee. If the Union Investment Company was qualified to take the title, or did in fact take it, that would settle plaintiff’s claim to title, for the investment company’s deed was prior in delivery and recording to that of