89 Ind. 389 | Ind. | 1883
Articles of association, signed and acknowledged as the law requires, were filed in the proper recorder’s office, but instead of filing a duplicate in the office of the Secretary of State as the statute provides, a certified copy was there filed. After this had been done, the association, calling itself The Kokomo Building and Loan Fund Association, assumed corporate functions, and in the course of corporate business received from Lewis W. Leach a mortgage on land. Subsequent to the execution and recording of this mortgage, Leach executed another mortgage to appellant on the same land.
The contention of appellant is, that as the association filed a certified copy, and not a duplicate, of its articles of association in the office of the Secretary of State, it never became a. corporation, and the mortgage executed to it is void.-
The rule stated by us does not go to the extent of precluding strangers from showing that there was no law authorizing a corporation, nor from showing that there was no attempt at corporate organization, nor any assumption of corporate powers. Oroville, etc., R. R. Co. v. Plumas Co., 37 Cal. 354. Where, however, the acts done by persons assuming to act as a corporation are such as to constitute them a defacto corporation, a collateral attack by a private person will, as a general rule, he unavailing. Without attempting to define what a defacto corporation is, we adjudge that an association may be ^regarded as a de facto corporation, where there is a law authorizing the •creation of a corporation of its class and powers, and where there is an attempt, in good faith, to comply with the law, and the only error is in filing a certified copy of the articles of association, instead of a duplicate, with one of two designated depositaries, and where there is also an exercise of corporate functions. This would exclude all associations which no law authorized to be incorporated, and all associations attempting to exercise corporate rights without an effort to obey the law, but would not exclude associations where there was a law authorizing an incorporation, and where there was an effort to •organize under the law, and nothing more than a mere defect or irregularity in the proceedings. Where one by contract ■estops himself, a still different rule applies, but of such cases we are not now speaking.
There are some apparent and some real exceptions to the .general rule., An apparent exception is, that subscribers to preliminary articles of association may, in a suit for their subscriptions, deny the corporate existence; an analysis,however, will show that there is no real conflict between the principles which govern in such cases and those which underlie our general rule, for in, the former class the condition precedent to the right of recovery is that there should*be a de jure corporation, and this is not a provision of a law but a condition of
The view we take of the case renders it unnecessary to consider the other questions discussed.
Judgment affirmed.