Worth, et al. v. Knickerbocker Trust Co.
Bill to Foreclose Mortgage.
(Decided April 13, 1911.
Rehearing denied April 27, 1911.
55 So. 144.)
1. Mortgages; Foreclosure; Assignment. — In a bill to foreclose a mortgage assigned to the complainant, it was not necessary to allege that the notes secured by the mortgage were actually delivered to the mortgagee and duly assigned by him to complainant.
2. Corporations; Foreign Corporations; Doing Business. — Where the only act done by it was the filing of a bill to foreclose a mortgage executed to another and assigned to it in New York, such an act was not the doing of business in the state by a foreign corporation, within the constitutional and statutory provisions fixing the duties of foreign corporations before doing business herein.
Appeal from Clay Chancery Court.
Heard before Hon. W. W. Whiteside.
Bill by the Knickerbocker Trust Company of New York against George W. Worth and others, to foreclose a mortgage. Decree for complainants and respondents appeal.
Affirmed.
Walter S. Smith, for appellant.
The bill should distinctly allege that the promissory notes to secure which the mortgage was given, was delivered to the payee, *622arid by him duly assigned to. trie Trust Company.— Hopper v. Eiland, 21 Ala. 714; I Dan. sec. 62. Trie amount claimed is not.sufficiently or definitely stated, and. the mortgage was presumed to be an Alabama contract, and that Alabama was the place of its execution. — Farrior v. Security Co., 88 Ala. 27; American F: M. Co. v. Sewell, 92 Ala. 163; Dundee M. & T. I. Co. v. Nixon, 95 Ala. 321. It appears to have been executed in New York and insufficiently acknowledged. —Marx v. Threat, 131 Ala. 345; Motes v. Carter, 73 Ala. 553. A commissioner taking acknowledgment must use the state regulations. — Keller v. Moore, 51 Ala. 340. The corporation was a foreign corporation and its act was clearly in violation of section 3642, Code 1907. Loaning money is engaging in such business although it constistutes but a single act. — Farrior v. Mortgage Co., suprajMullins v. Mortgage Co., 88 Ala. 280; Ginn v. Mortgage Co., 92 Ala. 135; Nelms v. Mortgage Co., 92 Ala. 157; 143 111. 462; 116 111. 375. The filing of the assignment with the judge of probate was an act of business, prohibited by the statute and constitution. The assignment, was-not sufficient. — Graham v. Nemnan, 21 Ala. 498;, Landers v. Cassidy, 86 Ala. 246; Christian v. A. F. & M. Go., 89 Ala. 198; Sullivan v. Vernon, 121 Ala. 394.
Tillman, Bradley & Morrow, for appellee.
After a discussion of demurrers which are declared to be puerile, counsel discuss the question of the violation of the statute against foreign corporations doing business- in the state without complying therewith,-and insist that there has been no violation as there has been no actual business. They cite. — Collier v. Pinchará, 94 Ala. 456; Electric L. Co. of Mobile v. Rust, 117 Ala. 680; A. B. & L. Assn. v. Haley, 132 Ala. 135; Woodall ' v. National Bamh, vec Ala. e,ge.
*623MAYFIELD, J.
The bill Í21 tbis case was filed by tbe appellee to foreclose a certain mortgage executed by the appellant to Ira L. McCord. Tbe respondents demurred to tbe bill, assigning a number of grounds, none of wbicb appear to contain any merit.
It was not necessary for tbe bill in tbis case to aver in terms that tbe note secured by tbe mortgage sought to be foreclosed was actually delivered by tbe mortgagors to tbe mortgagees, and duly and properly assigned to tbe complainant. Tbis specific averment of delivery Avas not essential. Tbe bill sufficiently alleged tbe ainount due upon tbe note secured by the mortgage, wbicb Avas sought to be foreclosed. While the bill showed that complainant Avas a foreign corporation, it did not allege that it had ever done, or was noAV doing business in tbe state of Alabama, in such sense as is contemplated in the constitutional and statutory provisions fixing tbe duties required of' foreign corporations before doing business in tbis state. The only act of tbe C02nplainant, past, present, and future, shown by the bill to have been done or .contemplated Avas tbe filing of this bill to foreclose tbe mortgage executed by tbe respondents, not to tbis foreign corporation, but to an individual, and which mortgage, tbe record shows, Avas transferred and assigned to such corporation in the state of Nóav York.
There is nothing in tbe bill or tbe exhibits to sIioav that tbe property mortgaged, as to Avhich tbe mortgage is sought to be foreclosed, was tbe li02nestead of tbe respondents or of any one else; consequently there Avas no necessity for tbe homestead acknowledgment as to such mortgage.
There is absolutely no 2nerit in any of tbe grounds of the demurrer interposed, and the- chancellor properly overruled the demurrer.
Affirmed.
Siaipson, McClellan, and S'omerville, JJ., concur.