American Mutual Life Insurance v. Owen , 81 Mass. 491 ( 1860 )

Metcalf, J.

1. The defendant Brewer denies that a foreign corporation can maintain a real action in this commonwealth. It is well settled, however, that such corporation may maintain an action of contract here for the recovery of its dues, or an action of tort for the recovery of damages done to its chattels. British American Land Co. v. Ames, 6 Met. 391. Portsmouth Livery Co. v. Watson, 10 Mass. 91. Angell & Ames on Corp. §§ 372-376. And we find no decision or intimation of this court that a real action cannot be maintained by such corporation. Such action was sustained by the circuit court of the United States, in Society for Propagation of the Gospel v. Wheeler, 2 Gallis. 105, and in Runyan v. Lessee of Coster, 14 Pet. 122, by the supreme court of the United States. On this point, it is not necessary that we should, in the present case, express any further opinion than this: That a foreign corporation, having a demand against a citizen of this state, on which an action can be maintained here, may take a mortgage of its debtor’s real estate to secure such demand, and may thereby acquire the same rights which appertain to other mortgagees; and that such corporation, having such demand on such citizen, and recovering judgment thereon. may levy ail execution on its judgment debtor’s real estate, with all the rights of any other levying creditor. Silver Lake Bank v. North, 4 Johns. Ch. 370. Lathrop v. Commercial Bank of Scioto, 8 Dana, 114. Lumbard v. Aldrich, 8 N. H. 31. New York Dry Dock v. Hicks, 5 McLean, 111. Ward v. Poole, 2 Kernan, 495.

2. The other objections to the validity of the note and mortgage were not pressed in argument, and seem to the court to be untenable.

3. The evidence that was offered to prove that Whitmore was the plaintiff’s actuary was not shown to be the best which the case admitted; and as it was offered for the purpose of defeating a claim otherwise apparently legal and meritorious, we think the judge rightly held that it was insufficient for that purpose. ' Exceptions overruled.