128 Ala. 624 | Ala. | 1900
The bill attacks the validity of' the bond and mortgage of the .complainant company on several grounds, viz.: that they were given to secure a loan to said company at a greater rate of interest than 8 per cent per annum, and, under the 'statute under which said company was organized (Code, 1886, § 1664 subdiv. 71, said bond and mortgage were ultra vires and void; that said Stable Company is a corporation organized under the general laws of the State, having only the powers and authority conferred by statute, and that no power is given to it by statute, to subscribe for the. stock of another corporation, and
To the bill as originally filed, a demurrer was interposed by the defendant corporation, and the same was overruled. On appeal to this court, the decree was affirmed, and t-lie equities of the bill, on the averments as made, were sustained. — S. B. & L. Asso. v. Casa Grande Stable Co., 119 Ala. 175.
The question of usury as presented in the evidence introduced on the trial of the’ cause, is quite different from that presented on the face of ther bill. We deem it unnecessary to pass on the question -of usury, as it is now presented on the facts, since it is not necessary for the determination of the cause in the. view we take of it in another of its aspects. We refer, as touching the question, to Southern B. & L. Asso. v. Anniston Loan & Trust Co., 101 Ala. 582, and Sheldon v. B. B. & L. Asso., 121 Ala. 278; Johnson v. S. B. & L. Asso., 121 Ala. 524; National B. & L. Asso. v. Ballard, 125 Ala. 155.
It is conceded that one corporation cannot, in the absence of express statutorv authority become an incorporator bv subscribing for the capital stock of a new corporation, or invest its -capital stock in the capital stock of another corporation. — Lanier L. Co. v. Reese, 103 Ala. 622; Com. F. Ins. Co. v. Board of Revenue, 99 Ala. 1. But, it is contended with plausibility, that this principle has n=o application to a transaction with a building and loan association already organized and operating, where a borrower is required by its rules and regulations to subscribe for certain shares of its stock, — a device, peculiar to such institutions, noon which loans are alone effected. As bearing on the question we refer to Endlich on B. & L. Asso., 282, 321; Thomnson on B. & L. Asso. (2d ed.). 215, § 114. As the point is unnecessary to the. decision of the cause we express no opinion on it.
When this cause was here on its former appeal, it was held that the borrowing of money by this corporation was unauthorized unless it was done by the consent of the holders of the larger part in value of the capital stock expressed in the manner prescribed in said section of the Code, which was enacted for the. protection of stockholders. — So. B. & L. Asso. v. Casa Grande Stable Co., 119 Ala. 181; Nelson v. Hubbard, 96 Ala. 238, 253; Barrett v. Pollak, 108 Ala. 390. It is also well understood that the doctrine of estoppel cannot be invoked by the defendant to bar the right of the corporation itself or of any of its stockholders to raise the question of its own ultra vires and void act, against the enforcement of the loan by the lender. — C. R. & B. Co. v. Smith, 76 Ala. 572, 581; Westinghouse Machine Co. v. Wilkinson, 79 Ala. 312, 314; Steiner v. Steiner L. & L. Co., 120 Ala. 128.
In this case, the complainant received from the defendant, as a loan the sum of $3,500, a large part-of which, it used in removing a prior mortgage on the property embraced in. defendant’s mortgage, and it appears it received the full benefit of the, loan' The evidence fully established the fact, and if is undisputed, that said loan was applied for to the' defendant, by two of the stockholders of the Stable Company, who
The complainant, apprehending the force and necessity of this principle, to the maintenance of its bill, offered to do equity, and to restore to the defendant the full amount of said loan, less the amounts that had been returned to the defendant. The court very correctly held the complainant to this offer, and proceeded from data furnished by the evidence, to ascertain for itself this balance remaining unpaid on said loan, and found it, at the date of the decree, to be the sum of 1892.92, upon the payment, of which, it was ordered that the bond and mortgage of the complainant, to the defendant be cancelled and held for naught.
We find no error in the decree of the court, and it is affirmed.
Affirmed.
The court below in the decree rendered in this cause, which was 'affirmed at a former day of the term, held that defendant’s cross-bill was without equity and dismissed the same. It also decreed that the said bond and mortgage of complainant to defendant, described in the pleadings, were null and void. The decree also ascertained the mortgage indebtedness from complainant to defendant.
It now, upon further consideration of the cause, ap
Reversed, rendered in part and remanded.