Ware v. Hamilton Brown Shoe Co.

92 Ala. 145 | Ala. | 1890

COLEMAN, J.

A foreign corporation can not do business in a State, without the consent of the State, express or implied, and this consent may be granted with such conditions as the State may see proper to impose, provided only that the conditions are not in conflict with the Constitution, and laws of the United State's, or inconsistent with the jurisdictional authority of the State, or in conflict with the rule, which forbids condemnation without opportunity for defense. — Commonwealth v. N. Y. L. E. & West. R. R. Co., 129 Pa. 463; Paul v. Virginia, 8 Wal. 168; Runfan v. Coster, 14 Pet. 122; St. Clair v. Cox, 106 U. S. 350; Doyle v. Continental Co., 94 U. S. 535; 15 Amer. St. Rep. 727. A State may exclude foreign corporations entirely, or restrict their business to particular localities, or exact such security for the performance of its contracts with its citizens as will best promote the public. interest. In the matter of contracts, corporations are not entitled to the benefit of that provision of the Constitution of the United States which declares, that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” Bank of Augusta v. Earle, 13 Pet. 584-5; Paul v. Virginia, 8 Wal. 181.

The Constitution of the United States declares that Congress shall have power “to regulate commerce with foreign nations, and among the several States;” and this power includes commerce carried on by corporations as well as commerce carried on by individuals. In the case from 8 Wal. 183, supra, in determining whether the issuing of a policy of insurance was a transaction of commerce, the court declared such contracts are not articles of commerce in any proper meaning of the word, among others, for the reason that they are not subjects of trade and bartar offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one State to another, and then put up for sale..

In the case of Robbins v. Shelby County Taxing District, 120 U. S. 489, it was held, that “the business of selling goods which were in Ohio at the time of sale, and were, at. a future time, to.be delivered to the purchaser in the State of Tennessee, constituted inter-State commerce, and the license tax imposed by the statute [of Tennessee upon the business of drummers] was a tax upon inter-State commerce and invalid.” 59 Amer. Rep. 267. The principle of law involved in the foregoing decision necessarily applies to the case now under consideration.

In the case of The Cooper Manfg. Co. v. Ferguson, 113 U. S. 727, Matthews, J., Blatchford concurring, held “the making of a contract in Colorado to manufacture certain machinery in Ohio, to be there delivered for transportation to the purchasers in Colorado, was commerce, and within the exclusive jurisdiction of Congress.

The bill avers that Ware was merchandising in Alabama, that complainant’s debt is due for shoes sold and shipped to him from its factory in St. Louis, Mo. For such a liability, it it can make no difference whether the contract for the purchase of the shoes was made in Alabama, and the shoes were to be shipped from St. Louis, or whether the terms of the purchase ■were agreed upon in St. Louis. Art. xiv, “Sec. 4 of the Constitution of Alabama, and the act of the legislature of 1886-7, p. 102-104, were not intended to interfere with matters of commerce between the States, and do not apply in cases like the present.

The facts iti the case of Kelly v. Longshore, 78 Ala. 204, were, that after Longshore had mortgaged his lands to Lehman, Durr & Co., Kelly recovered a judgment against Longshore. Kelly then filed a bill in chancery to require Lehman, Durr & Co. to foreclose their mortgage so that he might reach the excess of proceeds of sale, after satisfying the mortgage. The court held, that after the execution of the mortgage, there was nothing left in Longshore but the equity of redemption, and that a creditor of Longshore, or the purchaser of the equity of redemption, conceding the validity of the mortgage, could have no greater right than Longshore, which was simply to redeem from Lehman, Durr & Co. In the case before the court, the plaintiffs are not creditors of the mortgagor, and have no right or claim to the equity of redemption, or right to redeem from the mortgagee, and consequently there was no duty resting upon them to offer to redeem.' The older authorities (Davis v. Cook, 65 Ala. 617, and cases cited), which held that a junior mortgagee had the right to file a bill to foreclose his mortgage, and to compel the foreclosure oí a prior mortgage, have been in effect, if not in words, overruled by the more recent cases of Kelly v. Longshore, supra; and Pratt v. Nixon, 91 Ala. 192; 8 So. Rep. 151.

In the case of Hoot v. Sorrel, 11 Ala. 386, Jacob Hoot furnished lumber to improve a lot, the separate estate of his wife. Recognizing the general rule of law so often declared by this court that a gratuitous conveyance of property by a debtor is absolutely void as to existing creditors, and if made with the intention to defraud, will be avoided as to subsequent creditors, it jvas declared that the lumber was a gift to the wife, within the rule, and the court held that the proper way to reach the gift and subject it to creditors was to rent out or lease the property until the receipt equalled the value of the lumber furnished by the husband.

In the case of Nance v. Nance, 84 Ala. 378, this court declared, that materials furnished in making erections or improvements on the wife’s separate real estate by the husband with his own money, if he is embarrassed, will be regarded as a gift in fraud of his creditors, who may make her estate liable therefor, if the proof shows that the materials furnished by the husband were in his hands subject to their claims. In the same line of authority may be cited Aber v. Brandt, 36 N. J. Eq. 116; Frasey v. Wheeler, 4 Oregon, 190.

In the case of Bailey v. Gardner, 13 Amer. St. Rep. 847; s. c. 31 West Va., 94, though not directly involved, the question was very generally discussed, and many authorities commented on, and in conclusion, it was declared “as well settled,” that where no debt has been created between parties to a fraudulent transaction, and the personal property of the debtor has been merged or become a part of the real estate of another, the appropriate remedy for the creditor is to charge such real estate to the extent of the debtor’s property thus made part of the realty.

If the contest in regard to the improvements was between Robert Y. Ware, the defendant, and Bessie Wadsworth, the mortgagee, it is very clear, that the improvements would go with and as a part of the realty in satisfaction of the mortgage debt, but Robert Y. Ware, an embarrassed debtor, has no more right to donate his property in fraud of his creditors to Bessie Wadsworth, or for her benefit, than to donate the same property to his wife. The bill recognizes the' prior right of the mortgagee, and she is entitled to have her mortgage debt satisfied to the exhaustion of all the property conveyed, including the improvements as against the mortgagor, and her husband. But she can not appropriate the improvements put upon the premises by Robert Y. Ware in fraud of his creditors, until their claims have been satisfied.

Complainants are not creditors of the mortgagor, and consequently have no claim to her equity of redemption. They have no claim on the land, and can neither redeem under the mortgage, nor force its foreclosure. The mortgagee holds the legal title to real property of which Robert Y. Ware’s property has become a part, and which part is liable to his creditors. She is, therefore, a proper party to these proceedings, and will be concluded by them. She can protect herself by a cross-bill or other proceedings as she may be advised. Parties by contract may sever a dwelling from the realty, g.nd convert it into a chattel.—Foster v. Mabe, 4 Ala. 402; Vann v. Lunsford, 91 Ala. 576; 8 So. Rep 719. And if it become necessary to meet the demands of justice, a court of equity will do, what the parties themselves could do. Whether this course, or the rule declared in 11 Ala., sitpra, or some other should be adopted, will depend upon the-pleadings and proof in the further progress of the cause.

There is no error in the ruling of the court on the demurrers.

Affirmed.