145 Wis. 276 | Wis. | 1911
It is urged by the appellant (1) that the court was in error in holding that the Kelsey Really Company acquired no title to the lands involved because sec. 1770& of our statutes (Stats. 1898) had not been complied with; and (2) that the plaintiff is estopped from setting up any such defense to the action. Some other errors are assigned, but the contentions of the appellant in reference thereto are either untenable or immaterial in view of the conclusion reached, and they will not be discussed.
The appellant was a foreign corporation amenable to the
In support of his contention counsel for appellant invites our attention to a number of cases, which for convenience may be divided into three classes. The first class comprehends those wherein it is held that although aliens are disabled by the common law from acquiring, owning, or holding real estate within a state, yet if an alien does acquire property by grant or descent the transaction is not void, but is voidable ■only at the election of the state. Such were the cases of Craig v. Radford, 3 Wheat. 594, 599; Governeur’s Heirs v. Robertson, 11 Wheat. 332, 351, as well as other cases that might be cited. The second class comprehends those cases where a corporation acquires real estate without being authorized so to do by its charter or its articles of incorporation and where, therefore, its act in this behalf is ultra vires. In such a situation it is generally held that the right, at least of -a foreign corporation, to hold property can only be questioned
Other courts have held that, where there is a valid statute ■expressly prohibiting a corporation from acquiring real estate and declaring any conveyance made in defiance of the law to he void, such a conveyance should not be held voidable merely, and that any party in interest might take the benefit of the statute. Such was the conclusion of the New York ■court in the elaborately considered case entitled Estate of McGraw, 111 N. Y. 66, 96, 19 N. E. 233, which decision was affirmed on appeal to the supreme court of the United States, although the decision of that court is not particularly valuable, inasmuch as it followed the construction of the New York statutes placed thereon by its court of appeals. Other eases where the view of the New York court is upheld
The New York court differentiates between an act of a corporation which is merely ultra.vires and one which is in contravention of a positive statute, holding that, while the former may be voidable merely at the election of the state, the other is void and may be taken advantage of by any party in interest.
This court has had before it a number of cases arising out of business transactions by foreign corporations in the state where the statute had not been complied with, as well as cases involving contracts made in the state by such corporations, and has uniformly held that parties in interest might assert the benefit of the statute. See International T. Co. v. Peterson, 133 Wis. 302, 113 N. W. 730; Southwestern S. Co. v. Stephens, 139 Wis. 616, 626, 120 N. W. 408; Duluth M. Co. v. Clancy, 139 Wis. 189, 120 N. W. 854; Ashland L. Co. v. Detroit S. Co. 114 Wis. 66, 89 N. W. 904.
No good reason suggests itself why a party who is affected by a foreign corporation doing business or making a contract in the state in violation of the statute may take advantage of it, while one who is affected by the corporation acquiring or holding property may not do so. All these prohibitions occur in the same sentence in the statute and the penalty is’ precisely the same as to the violation of each of them.
But more convincing is the fact that this court has unequivocally held that the words “wholly void” as used in the statute “mean just what they say,” and that is, “absolutely void and a nullity.” Ashland L. Co. v. Detroit S. Co., supra. In adopting-such construction the court followed the decision in Land, L. & L. Co. v. McIntyre, 100 Wis. 245, 75 N. W. 964,
The statute is in fact plain and unambiguous on the question we are considering and leaves little room for construction. Drastic and harsh in its penalties it may be, but the legislature undoubtedly knew that cases involving great hardships might arise because of the statute. The state evidently intended to make the consequences of violating the law so great as to enforce obedience to it. It was within the legislative province to prescribe those penalties and this court cannot soften or mitigate them without violating the law. Ashland L. Co. v. Detroit S. Co., supra, and cases cited on page 78. If the construction contended for by the appellant should prevail, the statute in so far as it relates to the acquiring or holding of property in this state would be practically nullified. Even if the state should attempt to. assert its right it might be utterly impossible for it to get any service upon the foreign corporation so as to commence any action or proceeding in the courts of this state. It is no great hardship in the present case to hold that the appellant must comply with sec. 17706 'before it can take the benefit of our - recording statute, sec. 2241, Stats. (1898), under and by virtue of which it claims priority over the plaintiff. We hold, therefore, that the conveyance first made to the appellant was not simply voidable, but was void, and that the plaintiff may show that
By the Court. — Judgment affirmed.