Carver Cotton Gin Co. v. Barrett & Caswell , 66 Ga. 526 ( 1881 )

Jackson, Chief Justice.

The court below sustained the demurrer to the bill of complainant, and to that judgment the complainant excepted.

The bill is brought by the Carver Cotton Gin Company, a Massachusetts corporation, to recover from the defendants, Barrett & Caswell, the one-third interest of that corporation in certain lands sold for taxes and bought by defendants on the ground that defendants are tenants in common with this corporation, fraudulently got the land sold for taxes and bought it in at a very inadequate price.

The title which the corporation shows to the third part of the land is a deed from Schley, trustee, to it to secure a debt of Schley’s, contracted perhaps before the trust deed of Schley to his wife and children. This deed is made under the act of 1871, codified in section 1969, with bond for titles back to the grantor on payment of the debt, and its legal effect passed title by the express provisions of the act, as often ruled by this court, to the grantee.

Conceding that a complainant may make an equitable case against a tenant in common to recover lands thus sold for taxes, the question which meets us here in limine is, does this complainant show by the bill that it is a tenant in common.

While this court recognizes the rule of comity, by which foreign corporations are permitted the privileges in this state which are granted them in other states, under our Code, §1675, yet we are not informed whether this corporation has, by charter, the right to hold real estate in Massachusetts, for its charter is not set out in the bill, nor is any statute of Massachusetts therein stated which grants it such a franchise. A corporation lives only by the breath which the legislature gives it, and can move nowhere and hold nothing, unless the power be granted by its creator.

It may hold in Georgia what it had the power to hold in Massachusetts, unless against public policy here, but certainly nothing more. Courtesy to Massachusetts extends no further than to permit her child to do here what the child may do at home.

Again, it is nowhere shown in this bill what powers were conferred on Schley, trustee, by the deed from his brother in trust for the latter’s wife and children. The trust deed is not set out, nor is there any allegation that the trustee could sell the land, or on what terms and conditions ; and there is no order of chancery or any court to authorize this sale to secure this debt. Therefore the title to this tenancy in common through this trust deed breaks down again at the threshold of this case.

It would seem, too, that this foreign corporation took, if at all, only an interest in a subsisting corporation here, the Belleville Factory Company, one-third part of the stock thereof, and that this corporation could redeem as owner, perhaps, but not-one of the corporators certainly. Therefore no construction, however liberal, which could be given section 898 of our Code, granting the privilege of redeeming land sold for taxes to the owner thereof, can enure to the benefit of this party, if the owner be a corporation, and it a mere stockholder therein.

Besides all this, it is very clear that there is another owner of one third interest in this matter, whether it be the land itself or shares in the factory, and that owner ought to have been made a party to this bill. No reason is given why that one-third interest is not represented and the owner of it made a party. Perhaps the corporation, • the Belleville Factory Company, owns that one-third itself. It certainly once had title to all this land, and nowhere does this bill in this record show how it ever parted with that third interest, even if it did make the Schleys and Barrett & Caswell tenants in common with itself by conveying two thirds to them. The land was sold by the sheriff as its property, that of the Belleville Factory, and it should certainly have been made a party. The cestui que trusts, too, of the Schley deed, and the trustee, and the holder of the bond for titles are not made parties, and it would seem that they ought to have been joined.

We rest our judgment of affirmance, however, on the point that this complainant has not shown any title, legal or equitable, to this land, and hence had no right to redeem it either at law or in equity. The judgment dismissing the bill for want of equity therein is therefore affirmed.

Judgment affirmed.