[Chap. VIII. jurisdiction, notes given to foreign corporations are wholly void. 96 In Alaska, by express provision of the statute, a contract made by a foreign corporation before compliance is voidable by the other party. If the other party does not seasonably avoid it and return the consideration, the corporation after compliance with the statute may sue on the contract."7 If the contract is void, a bona fide assignee cannot sue on it; 98 and even if the contract is valid, if the corporation, not having complied with the statute, cannot bring suit its mere assignee cannot sue.99 Though the contract was void, if it has been executed the matter cannot be reopened at the suit of either party. So where the agent of a foreign insurance company paid a premium for the defendant and took defendant's note to himself personally for the amount, he could recover on the note without showing that the company had complied with the statute; for the entire transaction in which the corporation was concerned had been executed.100 § 215. Penalty for non-compliance. Even if the State does not deprive of effect acts by foreign corporations before compliance with the law, a State may and Co. v. Reilly, 187 Pa. 526, 41 Atl. 523; Cary-Lombard L. Co. v. Thomas, 92 Tenn. 587, 22 S. W. 743; Myers Mfg. Co. v. Wetzel, (Tenn. Ch.) 35 S. W. 896; Ashland Lumber Co. v. Detroit Salt Co., 114 Wis. 66, 89 N. W. 904. In Arkansas, under a form of statute recently modified, the contract was void as against a citizen of the State, but not as against a foreigner or another foreign corporation. St. Louis, A. & T. Ry. v. Fire Assoc., 60 Ark. 325, 30 S. W. 350. In Massachusetts, while the contract was held valid under the earlier statute, it is void under the present statute regulating foreign insurance companies. Reliance M I. Co. v. Sawyer, 160 Mass. 413, 36 N. E. 59; Baldwin v. Conn. M. L. I. Co., 182 Mass. 389, 65 N. E. 837. 96 First Nat. Bank v. Coughron, (Tenn. Ch.) 52 S. W. 1112; Etna Insurance Co. v. Harvey, 11 Wis. 394. 97 Ames v. Kruzner, 1 Alaska, 598. 98 First Nat. Bank v. Coughron (Tenn. Ch.), 52 S. W. 1112. 99 Kinney v. Reid Ice Cream Co., 57 App. Div. 206, 68 N. Y. S. 325. 100 Russell v. Jones, 101 Ala. 261, 13 So. 145. nearly all States do impose some penalty or personal liability on the officers or agents of foreign corporations, who act for them within the State. 101 And in Pennsylvania it has been held that the agent is liable personally at common law to the party with whom he deals on an implied warranty of authority.102 It must be clear too that when the penalties are statutory, subsequent compliance with the statute does not relieve the agent from the infliction of the penalty.103 § 216. Legal proceedings upon non-compliance. Just as usurpation or abuse of privileges by domestic corporations may be inquired into by the State in quo warranto proceedings, so compliance with the conditions precedent to doing business imposed on foreign corporations may be inquired into by quo warranto; 104 and for subsequent violation of State laws ouster may be brought about in the same way, 105 The issuance of a license being a ministerial act is not a bar to quo warranto proceedings. 106 Whether failure to comply with State statutes may be made the basis of proceedings other than by quo warranto, is a point on which the practice of the several States is not in accord. Thus it has been held 101 Lauter v. Jarvis-Conklin Mtg. Trust Co., 85 Fed. 894; Collier v. Davis, 94 Ala. 456, 10 So. 86; Kindel v. Beck & Pauli Lith. Co., 13 Colo. 310, 35 Pac. 538; Sims v. Com., 24 Ky. L. Rep. 1591, 71 S. W. 929; Kelley v. Rice-Blake Lumber Co., 167 Mass. 28, 44 N. E. 1090; Heard v. Pictorial Press, 182 Mass. 530, 65 N. E. 901; M. I. Wilcox Cordage & Supply Co. v. Mosher, 114 Mich. 64, 72 N. W. 117; Novelty Mfg. Co. v. Connell, 34 N. Y. S. 717, 88 Hun, 254; Cox v. Island Mining Co., 73 N. Y. S. 61, 65 App. Div. 508. 102 Lasher v. Stimson, 145 Pa. 30, 23 Atl. 552. 103 Vorys v. State, 67 Ohio St. 15, 65 N. E. 50; see also Knoxville Nursery Co. v. Com., 21 Ky. L. Rep. 1483, 55 S. W. 691. 104 State v. Am. Book Co., 65 Kan. 847, 69 Pac. 563; Union Trust Co. v. Atchison, T. & S. F. R. R., 8 N. M. 327, 43 Pac. 701; State v. Fidelity & Casualty Co., 49 Oh. St. 440, 31 N. E. 658, 34 A. S. R. 573; Wright v. Lee, 4 S. D. 237, 55 N. W. 931. 105 State v. Standard Oil Co., 61 Neb. 28, 84 N. W. 413, 87 A. S. R. 449. 108 State v. Fidelity & Casulaty Ins. Co., 49 Oh. St. 440, 31 N. E. 658, 34 A. S. R. 573. that proceeding by quo warranto is exclusive; while in some States proceeding by injunction has been allowed. 108 107 No private person can institute proceedings based on a failure of the foreign corporation to comply with the provisions of the statute.109 107 Union Trust Co. v. Atch. T. & S. F. R. R., 8 N. M. 327, 43 Pac. 701. 108 State v. Standard Oil Co., 61 Neb. 28, 84 N. W. 413, 34 A. S. R. 573; Wright v. Lee, 4 S. D. 237, 55 N. W. 931. 109 MacGinniss v. Boston & M. C. C. & S. M. Co., (Mont.) 75 Pac. 89. CHAPTER IX. DEALING WITH PROPERTY. § 221. The power to take and hold | § 227. Taking by way of security. property. 222. Power limited by charter. 223. Prohibition by the State of situs. 224. Conditions precedent to doing business. 225. Mortmain Acts. 226. Taking real estate. 228. Taking by devise or bequest. 232. Exercising a franchise. § 221. The power to take and hold property. In order that the title of property may pass to and be held by any person, the proper law must confer on him power to take, and the law that controls the property must pass the title to it. The power to take property must be conferred, in the case of a corporation, by the law that created it. But unless the power is expressly withheld it will be regarded as conferred; for the power to take and hold property is a power inherent in a corporation as in an individual. No special grant of power for the purpose is required either in the charter or from the State in which the property is acquired and held. The law that controls property is the law of its situs; and that law may forbid a foreign corporation to hold. § 222. Power limited by charter. As has been seen, the capacity to take and hold property is one of the ordinary legal incidents of incorporation; though no express provision on the subject is made in the charter, the capacity nevertheless exists.1 But after all the corporation 1 Russell v. Topping, 5 McLean, 194, Fed. Cas. No. 12,163 (semble); Lan must derive its right to acquire property from its charter, and a corporation which claims the right to hold land must show that it has that power by its charter.2 But there is a fundamental distinction between the right to take and the power to take. It is doubtless possible for a corporation to be created without the power to hold property; but such a corporation has as a matter of fact seldom or never been created. It is not uncommon for a charter to forbid a corporation to hold land; and it may be provided in the general law under which the incorporation takes place that the corporation shall have no power to take land except for specified purposes. But even in such a case the provision is interpreted as affecting the right rather than the power of the corporation to take; and while it would render a contract for the purchase of property ultra vires, it will not affect the validity of a conveyance to the corporation. In short, an express provision in the charter of a corporation against holding land or other property does not affect the power of the corporation to take, but only its right to take as between itself and the State of charter. A deed of land to a corporation under such circumstances is not void; and though the act of the corporation is wrong, the wrong is not to any individual, but to the State, and the State alone can object. The leading case on this point is Silver Lake Bank v. North.3 The bank, a Pennsylvania corporation, brought suit in New York to foreclose a mortgage which it had taken to secure a loan; the transaction being forbidden by its charter. The court said: "Perhaps it would be sufficient for this case, that the plaintiffs are a duly incorporated body, with authority to contract and take mortgages and judgments; and if they caster v. Amsterdam Improvement Co., 140 N. Y. 576, 35 N. E. 964, 24 L. R. A. 322; Barcello v. Hapgood, 118 N. C. 712, 24 S. E. 124; Page v. Heineberg, 40 Vt. 81, 94 A. D. 378. 2 State v. Hudson Land Co., 19 Wash. 85, 52 Pac. 574. 34 Johns. Ch. (N. Y.) 370. |