61 Neb. 744 | Neb. | 1901
The Fidelity Building & Loan Association, a corporation organized under the laAvs of Colorado, commenced suit in Douglas county to foreclose a mortgage on real estate situate in that county, executed to it by Paul Henni to secure the payment of a certain loan made by (.lie former to the latter. In the contract it was stipulated that it should be considered as having been made under and construed by the laAvs of the state of Colorado. Plaintiff, a foreign building and loan association, had not, at the time the contract was made, complied with section 17, chapter 14, Session Laws, 1891, which, among other things, declares that it shall not be lawful for a foreign building and loan association, directly or indirectly, to transact any business in this state without first procuring a certificate of approval and authorization
It it is against the settled policy' of this state, as announced by legislative enactments, to permit foreign associations or corporations like the plaintiff to transact business in this state without first complying with the requirements of the statutes—a law with which, presumably, a worthless or irresponsible organization could not comply—it is not in the power of the contracting parties to avoid such compliance by stipulating in their contract that it shall be construed by the laws of some other state.
We are fully aware of the criticism of Barbor v. Boehm made by Mr. Justice Post in American Building & Loan Ass’n v. Rainbolt, 48 Nebr., 434. What was there said was mere dictum, and it is expressly stated in the opinion that it was not the opinion of the other members of the
In further reply to the contention that this is a Colorado contract, because the parties so stipulate, is payable in Colorado, and one of the parties is resident in that state, we might say that the business which resulted in the defendant Henni becoming a member of this association, as well as that which resulted in the making of the loan, was all transacted in Nebraska, in violation of the statute, by an agent of the association resident in this state. Building & Loan Ass’n v. Bilan, 59 Nebr., 458.
The judgment of the lower court in favor of the plaintiff is therefore reversed, and the cause is remanded with instructions to enter a judgment in favor of the defendants.
Reversed.