Hale v. Harris , 112 Iowa 372 ( 1900 )

Sherwin, J.

The corporation of which the plaintiff is receiver was a Savings and loan association duly organized and existing under the laws of the state of Minnesota. It' was a mutual association, and the general nature of its business was declared to be to assist its members in saving monéy, and buying and improving real estate, and in loaning its accumulated funds to such members. Its business was not có'nfined to the state of Minnesota, and the petition alleges that on the fifteenth day of March, 1888, it fully complied with the laws of Iowa relating to foreign building and loan associations. In 1888. Ida If. Harris became a member of the association, and the holder of a certificate for 16 shares of its stock. Thereafter she procured a loan from the. association, and executed her note therefor, and secured the same-, by a mortgage upon real estate in Tama county, • This action was brought to foreclose that mortgage. . . ;

The plaintiff was appointed receiver by the courts of Min--, nesota, and duly qualified as such on the eighteenth, day of, June, 1896; and he alleges that on the twenty:seventh day. of June, 1890, the savings and loan association, assigned, and transferred to him as such receiver the nóte and moít-, gage in suit. The plaintiff concedes that he has no absolute-} right to sue as receiver in the courts of this state, but urges.that he should be permitted to do so. on the ground, of comity-between the states and as an assignee. In Ayres v. Siebel, 82 Iowa, 347, we have the strongest case decided by this, court in support of the demurrer. While the plaintiff in. that case was a trustee, and the court expressly called attention to that fact, and said that it was not .to be. understood as dealing with the application of a receiver to. sue -in tho. courts of this state, language was used tending to hold that, a receiver could not sue without express statutory authority to do so. In the subsequent cases of Parker v. Lamb, 99 Iowa, 265, and Wyman v. Eaton, 107 Iowa, 214, the doctrine of comity was referred to in deciding the cases, but not fully discussed. In. the former case the plaintiff was the receiver of a foreign insurance company which had done business in this, state without complying with the statute relating thereto. The court said: “It is possible that, if this contract of insurance was one which, under the laws of this state, might lawfully be made, it would be a proper case in which the courts of this state wo-uld entertain and determine, such an. action. The contract of insurance, so far as the right ,:of the company to insure property in this state is involved, is void. * ® * It being admitted that there was not even an attempt to comply with the law, the plaintiff is -in no position to demand that under any policy of comity he is entitled to maintain the action.” The case of Hurd v. City of Elizabeth, 41 N. J. Law, 3, is cited, and this language therefrom quoted: “The more correct definition of tho legal rule would be that a receiver cannot sue, or otherwise exercise his functions in a foreign jurisdiction, whenever such acts, if sanctioned, would interfere with the policy established by law in such foreign jurisdiction.” In Wyman v. Eaton, supra, the court uses this language: “Admitting, for the sake of the argument, the rule that comity controls as to the authority of plaintiff to sue in this state, and as we have in effect said, the record leaves us without doubt that its exercise should be denied, because it would be in contravention of the rights of our citizens, and operate to their injury.” Although these cases were determined upon the facts presented in each, it may with reason be said that the doctrine of comity between states was not expressly recognized, if it was not, in fact, the intention of the court to fully repudiate it; but, as another branch of this ease is presented which will determine it, we will say nothing further in relation to the comity which it is claimed should prevail between states in matters of this kind.

The plaintiff alleged in his petition that the note and mortgage upon which suit was instituted was duly assigned to him after his appointment as receiver. The demurrer to the petition was on the ground of want of capacity to sue in the courts of this state, and was sustained on that ground alone. It is true the suit was brought in plaintiff’s- name '“as receiver of the American Savings and Loan Association,” but the words “as receiver,” etc., may, we think, be treated as descriptive of' the person merely, and not as an essential part of the pleading. If this be true, the plaintiff was in court with a petition setting forth his title as receiver and also as an assignee, and, if he might maintain his action in either capacity, it was error to sustain a demurrer to the entire pleading. The demurrer admitted that •plaintiff was the assignee of the note and mortgage in question, and also that he held the legal title thereto, because tho assignee holds such title under well-settled principles. With the legal title of the instruments vested in him, we know of no rule of law in this state which denies him the right to use the courts for the collection of his claim, no matter whore his domicile may be. It is a familiar rule that a party holding the title of any instrument may sue thereon, and no exception to this rule has ever been made against a non-resident of this state, so far as we are advised. Indeed, it has been held in many states where the doctrine of comity has not been recognized as to suitors in a representative ■capacity that the assignee of property may maintain an action as of right. Cole v. Cunningham, 133 U. S. 107 (10 Supreme Court Rep. 269, 33 L. Ed. 538) ; Graydon v. Church, 7 Mich., 36; Gilman v. Ketchum, 84 Wis., 60 (54 N. W. Rep. 395) ; Swing v. Lumber Co., 91 Wis., 517 (65 N. W. Rep. 175) ; Buswell v. Order of Iron Hall, 161 Mass., 224 (36 N. E. Rep. 1065); Toronto General Trusts Co. v. Chicago, B. & Q. R. Co., 123 N. Y., 37 (25 N. E. Rep. 198). And see note to Straughan v. Hallwood, 8. Am. St. Rep. 49. The demurrer should have been overruled.— Be VERSED.

Granger, O.' J., not sitting.