Fire Ins. Co. v. Way, 62 N. H. 622; Ameri can Loan & Trust Co. v. R. Co., 37 Fed. 242 ; Rogers & Co. v. Simmons, 155 Mass. 259, 29 N. E. 580 ; or not void when the statute pro vides a penalty ; Fritts v. Palmer, 132 U. S. 282, 10 Sup. Ct. 93, 33 L. Ed. 317; Pangborn v. Westlake, 36 Ia. 546 ; Toledo Tie & Lum ber Co. v. Thomas, 33 W. Va. 566, 11 S. E. 37, 25 Am. St. Rep. 925 ; Sherwood v. Alvis, 83 Ala. 115, 3 South. 307, 3 Am. St. Rep. 695 (but see Farrior v. Security Co., 88 Ala. 275, 7 South. 200, Mullens v. Mtg. Co., 88 Ala. 280, 7 South. 201, and Christian v.' Land & Mtg. Co., 89 Ala. 198, 7 South. 427). In oth er states it is held that the contract cannot be enforced; Thome v. Ins. Co., 80 Pa. 15, 21 Am. Rep. 89 ; ADtna Ins. Co. v. Harvey, 11 Wis. 394; Cincinnati Mut. Health Assur. Co y. Rosenthal, 55 Ill. 85, 8 Am. Rep. 626; Ly coming Fire Ins. Co. v. Wright, 55 Vt 526; but the corporation cannot set up its own non-compliance with a statute to avoid its own contract ; Lasher v. Stimson, 145 Pa. 30, 23 Atl. 552 ; Hartford Live Stock Ins. Co. v. Matthews, 102 Mass. 221; Watertown Fire Ins. Co. v. Rust, 141 Ill. 85, 30 N. E. 772; Behler v. Ins. Co., 68 Ind. 347; Pennypacker v. Ins. Co., 80 'Ia. 56, 45 N. W. 408, 8 L. R. A. 236, 20 Sm. St. Rep. 395 ; Daniels v. Tear ney, 102 U. S. 415, 26 L. Ed. 187. Such con tracts may be validated by the legislature, by subsequent act; U. S. Mortgage Co. v. Gross, 93 Ill. 483. The rule avoiding them as against public policy is not to be extend ed; L. R. 19 Eq. 465. Whether compliance with such statutes is presumed or must be averred and proved is a point on which the decisions differ ; it is held that there is such presumption in Railway Co. v. Fire Ass'n, 55 Ark. 163, 18 S. W. 43; White River Lum ber Co. V. Imp. Ass'n, 55 Ark. 625, 18 S. W. 1055 ; American Ins. Co. v. Cutler, 36 Mich. 261; American Ins. Co. v. Smith, 73 Mo. 368; Sprague v. Lumber Co., 106 Ind. 242, 6 N. E. 335 ; and an analogous case is Fry v. Ben nett, 28 N. Y. 324. On the other hand, it has been frequently held that compliance must be averred and proved ; Christian v. Land & Mtg. Co., 89 Ala. 198, 7 South. 427 ; Lycoming Fire Ins. Co. v. Wright, 55 Vt. 526 ; but this view is said to be illogical and unsound; 31 Am. L. Rev. 19; 6 Thomp. Corp. § 7965, citing as conclusive the analogous case in which fail ure of a liquor dealer to have a license is held to be a good defence to an action for liquor sold; Miller v. Ammon, 145 U. S. 421, 12 Sup. Ct. 884, 36 L. Ed. 759; although no one would think of averring and proving his license. With much reason, therefore, it was held that such averment is not necessary, and nothing short of a distinct averment of non-compliance will make proof to the con trary necessary ; White River Lumber Co. v. Imp. Ass'n, 55 Ark. 625, 18 S. W. 1055.
The question of the power of a foreign corporation to take hold and transmit title to land is one of public policy, and no gen eral rule can be formulated from the deci sions and statutes which must (as in most matters affecting land titles) be referred to with reference to a particular state. En abling statutes will be found in many states, either general, or where such legislation is permissible, for special cases. It can at least be suggested that in the absence of any such legislation, or of express decisions, serious doubt will arise as to the power.
The conclusion is reached by Judge Thomp son that in the absence of prohibitory local law, there is much authority that, if author ized to do so in the state of their creation, corporations way hold land in other states; Barnes v. Suddard, 117 Ili. 237, 7 N. E. 477; New Hampshire Land Co. v. Tilton, 19 Fed. 73; Thompson v. Waters, 25 Mich. 214, 12 Am. Rep. 243; unless forbidden to do so ei ther by the public policy of the state; United States Trust Co. of New York v. Lee, 73 Ill. 142, 24 Am. Rep. 236; or its statute law ; Com. v. R. Co., 132 Pa. 591, 19 Atl. 291, 7 L. R. A. 634, where the subject is considered at length by Paxson, J., with respect to gen eral enabling laws and proceedings by the state in such cases; Runyan v. Coster, 14 Pet. (U. S.) 122, 10 L. Ed. 382; Hickory Farm Oil Co. v. R. Co., 32 Fed. 22.
It is sometimes held that the power exists for business purposes, as an office; Baltimore & P. Steamboat Co. v. McCutcheon, 13 Pa. 13 ; Carroll v. City of East St. Louis, 67 Ill. 568, 16 Am. Rep. 632; Barnes v. Suddard, 117 111. 237, 7 N. E. 477; and it has been held that a Connecticut compaiy having no business there could operate as a land company in New Hampshire; New Hampshire Land Co. v. Tilton, 19 Fed. 73; contra, Carroll v. City of East St. Louis, 67 Ill. 568, 16 Am. Rep. 632; the tendency of American legislation is to permit the holding of land by foreign cor porations, for business but not for specula tion; 6 Thomp. Corp. § 7917. The right of such corporation to take and hold title to real estate cannot be questioned in eject ment by It against a former managing direc tor; Seymour v. Gold Mines, 153 U. S. 523, 14 Sup. Ct. 847, 38 L. Ed. 807. See ALIEN.
The power of acquiring land has been held to exist until forbidden; American & F. Christian Union v. Yount, 101 U. S. 352, 25 L. Ed. 888; Blodgett v. Zinc Co., 120 Fed. 8a3, 58 C. C. A. 79; and as against every one except the state when proceeding for a for feiture; Runyan v. Coster, 14 Pet. 122, 10 L. Ed. 382; Baker v. Neff, 73 Ind. 68; Alex ander v. Tolleston Club of Chicago, 110 Ill. 65; Union Nat. Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188. Of such proceedings it is said that the only one in this country is that in Pennsylvania cited infra; 6 Thomp. Corp. § 7918.
Land may generally be taken by devise; Thompson v. Swoope, 24 Pa. 474; University v. Tucker, 31 W. Va. 621, 8 S. E. 410; but only by corporations having charter power so to take; Boyce v. City of St. Louis, 29 Barb. (N. Y.) 650; Starkweather v. Bible Soc., 72 Ill. 50, 22 Am. Rep. 133. Foreign corporations have usually the power to ac quire land by foreclosure of mortgages; Na tional Trust Co. v. Murphy, 30 N. J. Eq. 408; Farmers' Loan &, Trust Co. v. McKinney, 6 1VicLean 1, Fed. Cas. No. 4,667; American Mut. Life Ins. Co. v. Owen, 15 Gray (Mass.) 491; and in such cases the state only and not the mortgagor can set up a want of power; Carlow v. C. Aultman & Co., 28 Neb. 672, 44 N. W. 873; Pancoast v. Ins. Co., 79 Ind. 172.
In all cases involving the right of foreign corporations to hold lands the lex ref site; governs; Sto. Confl. L. § 428; Boyce v. City of St. Louis, 29 Barb. (N. Y.) 650. See Es