118 P.2d 717 | Idaho | 1941
Appellants resist the foreclosure by respondent *246 of its mortgage on land owned by appellants, on the grounds the mortgage and notes securing it are usurious, in that they provide for compound interest, i. e., interest on past due interest, and that respondent is a foreign corporation not qualified to loan money in Idaho.
The notes did provide for interest on past due interest, but this court has held that it is what interest is paid, not what is contracted or asked, which governs under 26-1906 I. C. A. (United States Building Loan Association v. Lanzarotti,
Section 26-1905 I. C. A., prior to the amendment thereof by Chapter 197 of the 1933 Session Laws, page 390, the mortgage being executed January 24, 1930, governs the permissible rate, which was 10%. (Brunswick Realty Co. v. University Inv. Co.,
The sixth covenant in the mortgage is as follows:
"Sixth. In case of failure to pay the taxes, assessments, charges, liens, costs, expenses, attorney's fees, water, reservoir or ditch dues, rents or assessments, as aforesaid, or to effect said insurance, the mortgagee may pay the same, and effect such insurance. The amounts so paid shall be due and payable, at the option of the mortgagee, with interest at the rate of ten per cent. per annum and reasonable attorney's fees incurred in the collection thereof, and such amounts shall be secured hereby."
A careful computation discloses no interest in excess of 10% on the principal of the notes and mortgage and advances admittedly proper for taxes, insurance, etc., was prayed for in respondent's complaint or allowed in the judgment. *247
Appellants admit respondent has at all times complied with sections
Article 11, section 10,1 of the Idaho Constitution, establishes the basic requirement permitting foreign corporations to do business in this state. Section
Appellant argues that the clause in
Since State v. Union Central Life Insurance Co.,
Under statutes sufficiently similar to ours to make them in point all the decisions of other courts we have found have uniformly held compliance with the insurance statute obviates compliance by an insurance company, though engaged in loaning money, with the general corporation statutes, and appellants have cited none to the contrary. In Bankers' Life Co. of DesMoines, Iowa, v. Horsfall,
"In their argument, appellants claim that respondent was not authorized to invest its funds in the note and mortgage in this suit, that it was only authorized to do an insurance business in this state, and so could only write and issue insurance policies and collect premiums. The investment of the funds of an insurance company is as much its business as the writing of insurance, and that is one of the necessary incidental powers of such companies, even in the absence of express statutory authority. It is evident that the Legislature never intended that any attempt of an insurance company to loan money on real estate in this state, without first having filed articles of incorporation with the secretary of state, 'must be held void.' "
And in Metropolitan Life Ins. Co. v. Whitestone Management Co., (N.D. Ill.)
"* * * its rights in the matter of loaning money are confined to the lending of its funds in furtherance of and as incidental to its expressed corporation purpose, to wit, insurance. I am of the opinion that, where a corporation is empowered by its charter to do such an insurance business, the expressed charter power carries with it as a necessary incident the right of the corporation to invest its funds in connection with the business."
The Circuit Court of Appeals, Second Circuit, affirmed the opinion of the district court in
"The insurance company in this case having complied with the requirements of the statutes covering the securing of a permit from the insurance commissioner, having paid to the insurance commissioner the fees therein demanded, to wit, 2 1/2 per cent. of the premiums collected by said insurance company, having designated a process agent, and having been issued a permit to do business in the state of Iowa by the insurance commissioner, had a *251 right to do business, and it was not necessary that they secure a permit from the secretary of state.
Judgment and decree (of foreclosure) of the lower court must be and it is hereby affirmed."
The Oklahoma supreme court in Carlin v. Prudential Ins. Co. ofAmerica,
"The statutes governing insurance companies and the general statutes governing foreign corporations accomplish the same general purpose. By complying with the provisions of the special statute, the plaintiff has fulfilled the intended purpose of the other. To require plaintiff to comply with the provisions of both the general and special statutes would subject it to duplicate burdens, and would serve no constructive purpose."
To the same effect see also Central Life Assur. Soc. (Mutual)v. Tiger,
This court has held in line with the above though not on the precise situation herein. (American Surety Co. v. DistrictCourt,
The trial court properly found in favor of respondent.
The judgment is affirmed. Costs to respondent.
Budge, C.J., and Morgan, Holden and Ailshie, JJ., concur.
1. The building in which it has its principal office and the land upon which it stands.
2. Such as shall be requisite only for its convenient accommodation in the transaction of its business.
3. Such as shall have been acquired for the accommodation of its business.
4. Such as shall have been mortgaged to it in good faith by way of securities for loans previously contracted or for moneys due.
5. Such as shall have been conveyed to it in satisfaction of debts previously contracted in the course of its dealings.
6. Such as shall have been purchased at sales upon judgments, decrees and mortgages obtained or made for such debts.
All such real property specified in subdivisions 3, 4, 5, and 6 of this section as shall not be necessary for its accommodation in the convenient transaction of its business, shall be sold and disposed of within five years after the same shall have ceased to be necessary for the accommodation of its business, and it shall not hold such property for a longer period unless it shall procure a certificate from the department of finance that its interests will suffer materially by the forced sale thereof, in which event the time for the sale may be extended to such time as the department shall direct in such certificate.
No real property shall be acquired by any domestic life insurance corporation under subdivisions 1 or 2 hereof, and no real property within the state shall be acquired under subdivision 2 hereof, except with the approval of the department of finance.
No real property shall be disposed of by any domestic life insurance corporation and no real property shall be disposed of by any foreign life insurance company by exchange for other real property hereafter substituted as a consideration of the transfer in whole or in part, unless the acquisition of the land shall be requisite for the convenient accommodation of the corporation in the transaction of its business, and shall be approved by the department of finance, or, if a foreign company, the insurance commissioner of the company's home state."