Page:Harvard Law Review Volume 8.djvu/39

23 ACQUISITION OF REAL ESTATE BY A CORPORATION. 23 But the transfer of the title to real estate is governed by the law of the State in which the land is situated. The right of cor- porations to hold real estate is wholly within the control of legis- lative action ; it may be limited or absolutely prohibited ; and the consequences of a violation of a limiting or prohibitory law may be legislatively fixed. Whether or not, then, a conveyance of real estate to a corporation, which is in violation of the rex rei sitce, is wholly void as to all persons and for every purpose, the title to the property remaining in the grantor despite his conveyance, must depend upon the legislative intent to be drawn from the language of the statute itself. The difficulty seems to be in determining the controlling prin- ciple or rule to be applied in the construction of such a law. The only proposition, it has been said, upon which all the authorities agree, is the elementary one that the law should be given such effect as the Legislature intended ; but there is an irreconcilable conflict in the cases, which have arisen under prohibitory statutes of various kinds as to the true criterion of the legislative intent- In some cases, it is urged that when there is a mere prohibition without a penalty, the Legislature must have intended that the prohibited act should be void, as otherwise there would be no penalty, and the law would be simply " an expression of legislative opinion, without means for its enforcement." In other cases, it is held that a mere prohibition does not make the prohibited act void. In some cases, the fact that a penalty is specified is regarded as establishing the " severely prohibitory character of the law," and as making the act void. In still another class of cases, the pres- ence of a penalty is taken to mean that the Legislature intended that it should be the sole consequence of the violation of the law. In the case, however, of a purchase of real estate by a corporation, in violation of a prohibitory statute, peculiar conditions are pre- sented, which would seem to establish it as the best rule that, in the absence of a declaration that the conveyance shall be void, or that the title shall remain in the grantor, or of some other provision of a similar nature, the question cannot be collaterally raised by third persons, or by the grantor or those claiming under him. The case of an illegal purchase of real estate by a corporation is to be distinguished from that class of cases in which it is necessary to hold acts done in violation of law void, because to hold other- wise would render the ^aw nugatory, there being no other way to enforce it. In the case of a prohibited purchase of real estate by a