States, as regards its Territories, to limit this right to the holding of a specified amount, which was accordingly done in a late statute,1 And, in perhaps all of the States, statutes of similar purpose and import exist, or else the limitation is to "real estate necessary to their use," or their powers in this regard are made similar to those of the domestic corporations of the State. It is also settled that, where a foreign corporation is incompetent to take title to real estate because of statutes prohibiting or limiting its powers, a conveyance to it is not void but voidable. The question cannot be raised in collateral proceedings, but is only assailable in a direct proceeding by the State.3 could take land in Michigan. Thompson v. Waters, 25 Mich. 214. A foreign corporation may take a deed of land in Illinois where a domestic corporation could. Hence, foreign corporations, for pecuniary profits, may acquire real estate in Illinois as far as is necessary to the transaction of their business. And whether, in taking it, the corporation has exceeded its powers is a question with which only the State is concerned. Illinois Rev. Stat. 1874, ch. 32, § 26; Barnes v. Suddard, 117 Ill. 237. A foreign corporation of an American State may purchase Kentucky land, or take mortgage thereon to secure the same. At common law, there was nothing to prevent corporations from taking land, and, in the absence of discrimination by statute against foreign American companies, which cannot be considered aliens, they have the same rights, and the restrictions in regard thereto, as are possessed or encountered by domestic corporations. Lathrop v. Commercial Bank of Scioto, 8 Dana (Ky.), 114, 120 (1839). 1. United States Statute, 1887.-Ownership of real estate in the Territories and in the District of Columbia restricted to American citizens, excepting cases of aliens acquiring land by inheritance, or in payment of existing debts, or where the right to acquire and hold land is secured to them by existing treaties; land to be acquired, held, or owned by corporations, except railway, canal, or turnpike corporations, limited to 5000 acres, and in case of such excepted corporations to so much as shall be necessary for purposes of operating their railway, etc., unless held by grant from United States; violations of the act to result in forfeiture of the land. U. S. act, March 3, 1887, 24 Stat. at L. ch. 340, P. 476. 2. New Jersey Statute, 1887.-The act concerning corporations (Rev. p. 195, S 99) amended so as to authorize foreign corporations having charter authority to engage in the business of acquiring, hold ing, mortgaging, leasing, and conveying real estate to pursue the conduct of such business in the State of New Jersey, and to that end to acquire, hold, mortgage, lease, and convey real estate therein. New Jersey act, 1887, April 11 (L. 1887, ch. 124). New York Statute, 1887.-Corporations organized under laws of any other State, doing business in the State of New York, authorized to hold and purchase real estate within that State necessary for their use, and to convey same by deed or otherwise. N. Y. act, May 24, 1887 (L. 1887, ch. 450, p. 551). A Pennsylvania statute provides that no foreign corporation shall acquire and hold any real estate in that State, “directly in the corporate name, or by or through any trustee or other device whatsoever,' ," unless authorized by statute of that State (act April 26, 1855, § 5). Held, that such a corporation could not evade the statute by purchasing the franchise of a Pennsylvania corporation owning such real estate as allowed by its charter, and that the real estate would, on such purchase, escheat to the State. Commonwealth v. New York, etc., R. Co., 114 Pa. St. 340. 3. In Cowell v. Colorado Springs Co., 100 U. S. 55, it was held that, when a corporation is authorized by statute to hold real property necessary to enable it to carry on its business, the inquiry whether any particular property is necessary for that business is a matter between the government of the State and the corporation, and is no concern of third parties. It would create great inconveniences and embarrassments if, in actions by corporations to recover the possession of their real property, an investigation was permitted into the necessity of such property for the purposes of their incorporation, and the title made to rest upon the proof of that necessity. See also National, etc., Co. v. Clarkin, 14 Cal. 552; Barnes v. Suddard, 117 Ill. 237. (a) Mortgages.-Foreign corporations may also make and execute mortgages, receive and foreclose them; but the burden is upon the corporation, or those claiming under it, to show that by its charter it is a body politic authorized to take or convey lands. A foreign corporation which has not complied with statutory conditions regulating its transaction of business in a State, is not thereby rendered incapable of taking a mortgage upon real estate.3 It may buy land at an execution sale in its favor, there being The capacity of a foreign corporation to take and hold title to land cannot be raised collaterally. Such a question can only be made in behalf of the State in a direct proceeding. Hough v. Cook Co. Land Co., 73 Ill. 23; Brown v. Phillips, 16 Iowa, 210; People v. Mauran, 5 Den. (N. Y.) 389; Page v. Heineberg. 40 Vt. 81; Tarpey . Deseret Salt Co. (Utah Ty. 1888), 17 Pac. Rep. 631. Compare Alex ander v. Tolleston Club, 110 Ill. 65; s.C., 8 Am. & Eng. Corp. Cas. 239. 1. A foreign corporation may take a mortgage to secure a claim. It may enforce the remedy and may levy execution, with all the rights of any other levying creditor. American Mut. Life Ins. Co. v. Owen, 15 Gray (Mass.), 491; Silver Lake Bank 7. North, 4 Johns. Ch. (N. Y.) 370; Lathrop v. Commercial Bank of Scioto, 8 Dana (Ky.), 114; Lumbard v. Aldrich, 8 N. H. 31; New York Dry Dock v. Hicks, 5 McLean (U. S.), 111; Farmers' Loan Co. v. McKinney, 6 McLean (C. C.), 1; Hards v. Connecticut, etc., Ins. Co., 8 Biss. (C. C.) 236; Life Ins. Co. v. Overholt, 4 Dill. (C. C.) 287; Stevens v. Pratt, Ior Ill. 206; National Trust Co. v. Murphy, 30 N. J. Eq. 408; Lebanon Savings Bank v. Hollenbeck, 29 Minn. 322; Leasure v. Union Mut. Life Ins. Co., 91 Pa. St. 491; Bard v. Poole, 2 Kern. (N. Y.) 495. Compare U. S. Mortgage Co. v. Gross, 93 Ill. 483. In New York, it was held that if an incorporated bank of another State lend money and take a mortgage in New York State, it is not a violation of New York act of 1818 relative to banks, etc.. for restraining unincorporated associa tions from carrying on banking business. Silver Lake Bank v. North, 4 Johns. Ch. (N. Y.) 373. In Saltmarsh v. Spaulding (Mass. 1888). 20 Am. & Eng. Corp. Cas. 514, it was held that the provisions of the Mass. Pub. Stat., ch. 106, § 103, relating to conveyances or mortgages by corporations, refers only to corporations subject to the provisions of that chapter, and is not applicable to foreign corporations. A mortgage executed by a foreign cor poration upon its real estate situate in Massachusetts, in accordance with the laws of the State, by which it was created, is valid in Massachusetts. The court observes: "While the general principle no doubt is that the law of the place where real property is situate exclusively governs as to the title of the parties therein, the disposition and mode of transfer thereof, and the solemnities attending such transfer, and while we do not doubt that it would be possible to provide by legislation that foreign corporations permitted to own real property situate in this State should only transfer the same by authority of the stockholders, no such provision has been made. torney-General v. Bay State Mining Co., 99 Mass. 148. While they must comply, in their forms of conveyance, with those here required, they derive their authority to make them from the rules imposed upon them by the State where they are created." At 2. Angell & Ames Corp. (Ed. of 1882) § 162, and authorities cited. requiring 3. Colorado Territory act filing in 30 days, of evidence of incorporation of foreign corporation, entering therein, but containing nothing to indicate that this was a condition on which they might continue in business, but providing penalty on the officers failing to comply, was held not to render the non-complying foreign corporation incapable of taking a mortgage on real estate in the late Territory; and it was held that no prohibition to continue in business could be implied from these enactments. Northwest. Mut. L. Ins. Co. v. Overholt, 4 Dill. (C. C.) 287. 4. Elston v. Piggott, 94 Ind. 14; s. c., 8 Am. & Eng. Corp. Cas. 185. A foreign corporation had commenced a suit to foreclose a mortgage, in the United States circuit court, before Indiana R. S. 3029, 3030 were enacted, and obtained a decree afterwards. It began another suit against another party, in that court, after that statute took effect, and still later it became the purchaser of lands sold at judicial sale to satisfy its first decree, and took a deed therefor. Held, that the no statute to to prevent it, and can convey the title thus acquired.1 But a non-complying company cannot enforce a mortgage for money loaned by its agent; the mortgage is not void, but its enforcement must await compliance by the company. (b) Devise.--The power of all corporations to take property by devise is regulated by statute in various States. The implied power of corporations, both domestic3 and foreign, to take and hold real estate, except as limited by law, is well recognized. But it seems to be an unquestioned principle that a State may place corporation took title, notwithstanding the statute, which is void so far as by its terms it undertakes to affect the title. "We know, as matter of general history, that for many years foreign corporations have loaned money on mortgage security, and that there is no decision questioning their right to buy land at sales on decrees in their favor. We know also that their right to make such loans has been expressly recognized. Pancoast v. Travelers Ins. Co., 79 Ind. 172. We know too that the legislature has tacitly, if not expressly, recognized this general right by enacting laws restricting and limiting it. If there is no such general right, then for a long series of years the legislature has been paying deference to a mere shadow." Elston v. Piggott, 94 Ind. 14; s. c., 8 Am. & Eng. Corp. Cas. 185. 1. In Lumbard v. Aldrich, 8 N. H. 31, it was said: “If foreign corporations may sue here, they must be entitled to the benefit of their judgments, according to the ordinary course of law. They may therefore levy on land in satisfaction of their executions." Again: "If they may thus acquire a title, it would be exceedingly absurd to say that they might not obtain an action for possession, or that they could not convey the title thus acquired." Lumbard v. Aldrich, 8 N. H. 31; Cooley Const. Lim. (5th Ed.) 152. 2. Daly v. Nat. L. Ins. Co., 64 Ind. I. Non-compliance with statutory requirement as to consent to be sued, and authorizing service on agent, does not make void a mortgage taken by a foreign corporation, though it can be set up by plea in abatement as showing the premature bringing of the action. Daly v. Ins. Co., 64 Ind. 5; Walter A. Wood, etc., Co. v. Caldwell, 54 Ind. 270. In Oregon, the United States circuit court held that the non-complying corporation could not purchase at the sheriff's sale on a mortgage executed to such company. In that State, mortgages are but securities and do not entitle to possession; and, even though the foreign corporation obtain a decree directing sale upon it, which as between the parties is res adjudicata and settles the question as to that suit, yet, as mortgages are but security, the possession or conveyance by the sheriff is another matter, and the title conveyed to the foreign corporation is void. Semple v. Bank of British Columbia, 5 Sawy. (C. C.) 88. Ejectment. A foreign corporation may bring an action of ejectment. New York Dry Dock v. Hicks, 5 McLean (C. C.), III. And real actions. American, etc., Ins. Co. v. Owen, 15 Gray (Mass.), 493; Smith v. Little, 67 Ind. 549. Real action by foreign corporations has been sustained by the United States circuit court in Society for Propagation of the Gospel v. Wheeler, 2 Gall. (U. S.) 105; and by the supreme court of the United States, in Runyan v. Coster's Lessee, 14 Pet. (U. S.) 122. Chattel Mortgage. —Arkansas statutes require chattel mortgages to be recorded in a county where the mortgagor resides. Such a mortgage executed by a foreign corporation doing business in a certain county was recorded there. Subsequently certain creditors obtained judgment against the corporation and seized the personal property under execution. The mortgagees afterwards sought to foreclose the mortgages joining the judgment creditors as defendants. Held, that, as the corporation had no residence in Arkansas, the recording the mortgage did not give the mortgagees a lien as against creditors who had sued upon the foreclosure proceedings. Watson v. Thompson Lumber Co. (Ark. 1887), 17 Am. & Eng. Corp. Cas. 211. 3. See CORPORATIONS (PRIVATE), Powers as to Real Estate, 4 Am. & Eng. Encyc. of Law, 230. 4. See. supra, this title, Powers as to REAL ESTATE. upon corporations of its own creation such limitations or prohibitions in this regard as its policy may dictate; and, if a State may not also regulate the acquisition by foreign corporations of real property within its boundaries, the essential doctrines of real estate law and the established limitations upon the law of comity must be overthrown.1 It is accordingly settled that foreign corporations cannot acquire by purchase large quantities of land in a State if the State's implied policy forbids it; nor can a corporation, with power under its charter to take by devise, so take property in a State whose laws prohibit such devises.3 In some of the States, devises to corporations are forbidden except under certain conditions; and the question of the application of such statutes to foreign corporations has arisen. They clearly apply to foreign corporations attempting to so take property in a State where they are in force; but they belong to that class of local statutes which do not necessarily follow foreign corporations. into other jurisdictions. It has been pointed out that they are intended to regulate the testamentary capacity of citizens in the State where they are adopted, and not to affect citizens of other States, and that their primary purpose is to define such testamentary capacity rather than to regulate corporations in the acquistion of property. Accordingly, where a foreign corporation is generally competent to take land, the prohibition in the Statute of Wills. of the State which created it against all devises of lands to corpo 1. See authorities cited, supra, POWERS AS TO REAL ESTATE. 2. 'In Carroll v. East St. Louis, 67 Ill. 568, the question was whether the Connection Land Co., a corporation created in another State for the sole purpose of buying and selling lands, had power to purchase and hold title to lands in the State of Illinois. The decision was that it could not, for the reason-and no other is assigned-that, if the company were permitted to exercise its functions in Illinois to the full extent authorized by its charter, it could acquire lands without limit as to quantity and hold them in perpetuity; that such privileges had never been accorded by Illinois to her own domestic corporations, and were inconsistent with her settled public policy against perpetuities, as indicated, not by direct express enactment, but with absolute certainty by the general course of its legislation from the very organization of the State." American, etc.. Christian Union v. Yount, 101 U. S. 352. 3. United States v. Fox, 94 U. S. 315; White v. Howard, 46 N. Y. 144; Boyce v. City of St. Louis, 29 Barb. (N. Y.) 650. In Fellows v. Miner, 119 Mass. 541. it was held that when a corporation of New York which had no power to take by de- note. 5. In White v. Howard, 38 Conn. 342, the court observed: "There is no prohibition in the charter; the inability is created by the New York Statute of Wills, expressly excepting corporations from taking by devise. Now, this corporation brings with it from New York its charter, but it does not bring with it the New York Statute of Wills, and cannot bring it to be recognized as law within this jurisdiction. There is an obvious distinction between an incapacity to take created by the statute of a State which is local, and a prohibitory clause in a charter which everywhere cleaves to the corporation.” 6. Thompson v. Swoope, 24 Pa. St. 474; Morawetz Corp. (2d Ed.) § 332. Compare Van Sant v. Roberts, 3 Md. 119; Brown v. Tompkins, 49 Md. 423. rations, does not prevent it from taking and holding land in a State, by devise of one of that State's citizens, if such devise is not there unlawful.1 In the absence of some such restrictions, the implied power of foreign corporations to take and hold real and personal property by devise or gift is undoubted.2 1. In Starkweather v. American Bible Soc.. 72 Ill. 50, there was a devise by a citizen of Illinois, of land in that State, to a corporation of New York, which was incapable, under the laws of that State, of taking property by devise. It was held that New York had no power to create a body incapable of taking land in that State by devise, and yet with power to so take lands in a foreign jurisdiction. The principles announced in Carroll v. East St. Louis, 67 Ill. 568, were regarded as conclusive against the claim of the Bible Society; as," said the court, "all of the inconveniences and injuries are as likely to ensue in this, and other cases like it, as in that." In American, etc., Christian Union v. Yount, 101 U. S. 352, the devise was made in Illinois, by a citizen thereof, to a corporation of New York made capable of taking, receiving, purchasing, and holding real estate for the purposes of its incorporation, and for no other purpose, to certain specified amounts, and no question was raised of its power, consistent with its own charter and the laws of New York, to acquire, for the purposes of its creation, real estate within these limits. In holding that the devise was valid, and distinguishing the cases of Carroll v. East St. Louis, 67 Ill. 568, and Starkweather v. American Bible Soc., 72 Ill. 50, Harlan, J., observes: "The Starkweather case was held to be concluded by the principles announced in the Carroll case, for the reason perhaps that the property devised could, consistently with the will of the testator and the charter of the society, have been held for a period of time beyond that allowed to similar corporations of Illinois holding lands in that State. Upon no other ground are we able to understand how the Starkweather case was concluded by the principles announced in Carroll v. East St. Louis, 67 Ill. 568. Neither decision warrants the conclusion that, at the date of the deed to appellant, a benevolent, religious, or missionary corporation of another State, having authority under its own charter to take lands in limited quantities for the purposes of its incorporation, was forbidden, by the statutes or public policy of Illinois, from taking title, for such purposes, to real property in that State under a conveyance from one of its citizens, duly executed and recorded as required by its laws. The conveyance to the appellant can be sustained without in any degree impairing or doing violence to the fundamental principle enunciated in the Carroll case, viz., that the corporations cannot acquire lands in Illinois, in large quantities, to be held, or which may be held, in perpetuity. It can also be sustained, without violating the main proposition laid down in the Starkweather case, viz., that a foreign corporation, forbidden, by the laws of the State creating it, to acquire lands there by devise, could not, by that mode, take lands in Illinois, in the absence of a statute of that State assenting thereto. We cannot presume that it is now, or was in 1870, against the public policy of Illinois that one of its citizens should convey real estate there situated to a benovelent or missionary corporation of another State of the Union for the purpose of enabling it to carry out the objects of its creation, when that State permitted its own corporations, organized for like purposes, to take real estate within its limits, by purchase, gift, devise, or in any other manner." In Santa Clara Female Acad. v. Sullivan, 116 Ill. 375. it was held that a cor. poration created by the laws of Wisconsin for educational purposes, with the power to acquire and hold real estate, is capable of taking by devise lands in Illinois. The court revieved the Illinois statutes, and showed that they were not only not prohibitory of corporations for educational purposes holding land in that State, but expressly empowered such corporations to take by devise and grant, without limit in quantity and value, except when held beyond a certain length of time, and said that there was no discrimination against foreign corporations, which were to be hospitably received on footing equal with those domestic. Receiving tuition fees, or "pecuniary profit," all of which are applied to educational purposes, does not alter the decision. 2. American Bible Soc. v. Marshall, 15 Ohio St. 537; Thompson v. Swoop, 24 Pa. St. 480; Sherwood v. American Bible Soc., 4 Abb. Ct. App. Dec. (N. Y.) 227; White v. Howard, 38 Conn. 342; Hollis |