American Building Loan & Tontine Savings Ass'n v. Haley , 132 Ala. 135 ( 1901 )

SHARPE, J.

— In Sullivan v. Vernon, 121 Ala. 394,.

it was held that a foreign building and loan asociation was not entitled to relief upon a bill to foreclose a mortgage taken in the transaction of its corporate 'business in this State without alleging its compliance with the conditions as to appointing here a place of business and an agent, prescribed by the statute.—Code, §§ 1316 et seq. The absence of such allegation does not, however, .subject such a bill to demurrer where the bill does not show on its fact that the transaction was had in this State. The principle governing is the same as that which in Collier v. Davis, 94 Ala. 456, was applied in condemnation of a plea which -set up a similar statute in bar of a suit growing out of a loan by a foreign corporation, and failed to show affirmatively that the contract for the loan was made in this State.

The present bill does not as in the- case of Sullivan, supra, disclose that the mortgage sought to be foreclosed, was executed here or that ’the transaction giving rise to it was in any part had in this State. That it evidenced an Alabama contract is not presumable merely from the facts that the land was here and the mortgagor resided here, and there is no law which prohibits a foreign corporation to make loans in the course of business done in its home State on security consisting of lands in Alabama.—Elec. Lighting Co. v. Rust, 117 Ala. 680.

The demurrer was not appropriate to raise the question of usury for the reason that it was directed to the bill as a whole and the bill was framed for foreclosure as to unpaid principal of the sum secured as well as for charges claimed to be usurious.

The 'decree sustaining the demurrer will be reversed and one will be here rendered overruling the demurrer and allowing thirty days within which the bill may be answered. Let the cause be remanded for further proceedings.

Reversed and remanded.