The controlling question presented by the appeal in this case for our determination is whether or not a Trust Company doing business under the laws of the State of Ohio and located in the City of Toledo, Ohio, may foreclose in the courts of Florida a mortgage on lands in Florida, which mortgage, together with the indebtedness which it secured, was transferred in the City of Toledo, Ohio, by the mortgagee to the Trust Company in trust.
It is contended by the appellant that under the provisions of Chapter 8531, Acts of 1921, as amended by Chapter 9287, Acts of 1923, and especially under the provisions of that part of the Act of 1923 which is reflected in Section 6145 C. G. L., that the appellee, being a foreign trust company, is precluded from maintaining the suit to enforce the payment of the obligation secured by the mortgage in the courts of this State.
We do not think that the maintaining of a suit to foreclose a mortgage under the conditions existing in this case constitutes the exercise of any of the trust functions prescribed by the laws of the State of Florida.
The statute here under consideration should be consideredin paria materia with other statutes controlling the same subject matter.
Sec. 4269 C. G. L., being originally Sec. 13 of Chapter 11829, Acts of 1927, provides:
"No foreign corporation which has heretofore or shall hereafter qualify to transact business in this State, nor any foreign corporation which is now carrying on business in *Page 92 this State, or shall hereafter carry on business in this State, without having qualified to do so, and no domestic corporation now or hereafter incorporated shall be permitted to maintain any action in any court of this State until such corporation shall have complied with the provisions either of Section 4257 and 4258, or with the provisions of Section 4259, and shall have paid to the State a penalty of $1.00 for each day after it should have qualified to do business within this State and shall have complied with the provisions of this law until it does so qualify to do business and comply with the provisions of this law."
Then follows a provision limiting the amount of penalty which may be required.
Sec. 4270 C. G. L., which was Sec. 14 of the Act of 1927,supra, provides that, "the provisions of this law shall not be deemed to apply to the following named corporations and classes of corporations, to-wit: banking companies, trust companies, safety deposit companies, building and loan associations, insurance companies, mutual fire insurance associations "and other mentioned corporations.
The trust company in this case is not attempting to perform trust functions in Florida. It is simply attempting through the process of law to enforce the payment of an obligation which it holds as Trustee.
The question here under consideration is not unlike that which was presented in the case of Girard Trust Co. v. Tampa Shore Development Co., 95 Fla. 1010, 117 So. 786. There we had under consideration the foreclosure by the trust company of the purchase money mortgage which was given in part payment for lands, which had been conveyed by the trust company to the mortgagor. Here we have under consideration a suit brought by the trust company to *Page 93 foreclose a mortgage, the title to which it holds in trust for the mortgagee.
Our statutes prohibit any foreign trust company becoming qualified to do business under the laws of the State of Florida. And, therefore, if the foreign trust company can not qualify to perform trust functions in this State, and we should hold that the maintenance of a suit to foreclose a mortgage held in trust by a foreign trust company is the exercise of a trust function, then we close the doors of the courts of this State to foreign trust companies to perform the functions which it is their duty to perform under the laws of the states in which they are organized and in which they transact their business.
In the case of Worth, et al., v. Knickerbocker Trust Co.,171 Ala. 621, 55 So. 144, a demurrer to a bill to foreclose mortgage raised a question as to whether or not the maintenance of a suit by a foreign corporation to foreclose a mortgage in the courts of the State of Alabama was in violation of the Constitution and Statutes of Alabama prohibiting foreign corporations doing business in the State of Alabama. There the court held:
"While the bill showed that complainant was a foreign corporation, it did not allege that it had ever done, or was now doing, any business in the State of Alabama, in such sense as is contemplated in the constitutional and statutory provisions fixing the duties required of foreign corporations before doing business in this State. The only act of the complainant, past, present and future, shown by the bill to have been done or contemplated, was the filing of this bill to foreclose the mortgage executed by the respondents, not to this foreign corporation, but to an individual, and which mortgage, the record shows, was transferred and assigned to such corporation in the State of New York." *Page 94
In Morse v. Holland Trust Co., et al., 184 Ill. 255, 56 N.E. 369, the Supreme Court of Illinois said:
"Where bonds were issued by a corporation secured by a trust deed to a foreign corporation, which was required to certify the bonds in the State of its domicile, and was authorized to take possession of and manage the property mortgaged, the fact that such corporation could not act as such trustee by reason of its failure to comply with the law of Illinois, did not render such bonds nor the mortgage securing them invalid, since, if the trustee was incapable of acting, a competent trustee might be appointed by the court.
"Where a foreign corporation not authorized to do business in Illinois, accepted a trust deed securing bonds issued by a domestic corporation, under which such foreign corporation as trustee, was required to certify such bonds in the State of its domicile, and authorized to take possession of and manage the property, etc., but in fact never acted except to certify the bonds and join with the bondholders in a suit to foreclose the deed, it having submitted the property to the jurisdiction of the court, the fact that it was not entitled to assume an active trust within the State was no objection to a decree foreclosing the deed, and directing a sale of the property."
See also Vol. 14-A C. J. 1292, and cases there cited.
For the reasons stated, the decree appealed from should be affirmed and it is so ordered.
Affirmed.
WHITFIELD, ELLIS, and TERRELL, J. J., concur.
DAVIS, C. J., and BROWN, J., dissent.