Hanchey v. Southern Home Building & Loan Ass'n

140 Ala. 245

• Court: Supreme Court of Alabama
• Decided: November 15, 1903
• Status: Published

Opinion

SHARPE, J.

In the bill it is alleged that the defendant is a foreign corporation and that it made the alleged loan and took the alleged bond and mortgage within this State and “without complying with the law of said State requiring foreign corporations doing business therein to file with the Secretary of State, at Montgomery, Alabama, a statement in writing giving the name of one agent and one known place of business.” This allegation taken as true shows a failure on defendant’s part to do that which under the statute (Code, § 1386) was made a condition to its right to do business here, and consequently that the bond and mortgage are void. This conclusion is in accordance with the decision in Chattanooga B. & L. Association v. Denson, 189 U. S. 410, which was based on the statute referred to together with decisions of this court rendered in Farrior v. New Eng. Mort. Sec. Co., 88 Ala. 275; New Eng. Mort. Sec. Co., v. Ingram, 91 Ala. 337; Nelms v. Edinburg American Land Mort. Co., 92 Ala. 157, and Sullivan v. Sullivan Timber Co., 103 Ala. 371. In Eslava v. New York B. & L. Association, 121 Ala. 480, a like question was mentioned but not determined.

If the bond and mortgage are void for the reason mentioned, the defendant is not bound by their stipulations and is entitled to have them cancelled, if, as averred in the bill, “he has paid back to said corporation the principal of the debt together with legal interest the obligation to restore the money borrowed with interest being imposed upon him, not by contract, but by the principle which requires one seeking relief in equity to himself do equity.—New Eng. Mort. Co. v. Powell, 97 Ala. 483. See also Luffboro v. Foster, 92 Ala. 477. Whether the bill was subject to demurrer is not now to be determined. The motion to'’dismiss for want of equity should have been overruled.

To consider the bill’s averments of fraud and usury would be superfluous. Assuming that for the cause shown in the first mentioned averment, the attempt to contract was futile, it matters not what means were employed in that attempt. Questions of fraud and usury like those herein presented were considered in Bell v. Southern Home B. & L. Association, which case was submitted with this and decided at present term.—infra.

Decree reversed and cause remanded.