one of the devisees joined in the deed with the widow, taken in connection with the fact that they sold the land for about one-third of its actual value, that the widow did not convey as executrix, and that the deed makes no reference whatever to the power, goes to show that they were only selling their individual interests in the land, and that there was no intention to execute the power. The language of the deed clearly indicates this, for the grantors therein covenant that they are "lawfully seised of said land as heirs and legatees of Matthew Bristow, deceased.'

On the whole case, we are of the opinion that there was no execution of the power contained in the will, and that the grantee under the deed took only the individual interests of Mrs. Bristow and Anderson in the land. It follows that the judgment of the chancellor was right, and it is therefore affirmed.

It is Not Necessary that the Intention to Execute a Power should expressly appear upon the face of the instrument: Gulf Red Cedar Lumber Co. v. O'Neal, 131 Ala. 117,90 Am. St. Rep. 22; Terry v. Rodahan, 79 Ga. 278, 11 Am. St. Rep. 420. It has been affirmed, however, that an instrument cannot be given effect as an execution of a power, unless the intention of the donee of the power to execute it is so apparent that the instrument is not fairly susceptible of any other interpretation: Mason v. Wheeler, 19 R. I. 21, 61 Am. St. Rep. 734.

When a Donee of a Power to Sell Land possesses also an interest in the subject of the power, a conveyance by him in his own name without reference to the power will be deemed an execution of it, if such an intention is made to appear: McCreary v. Bomberger, 151 Pa. 323, 31 Am. St. Rep. 760; Gulf Red Cedar Lumber Co. v. O'Neal, 131 Ala. 117, 90 Am. St. Rep. 22.

WOOLFORT v. DIXIE COTTON OIL COMPANY. [77 Ark. 203, 91 S. W. 306.]

CORPORATIONS-FOREIGN-Contracts of-Compliance With Statute. A contract made by a foreign corporation before compliance with the terms of a statute authorizing or permitting it to do business within the state is not void, but may be enforced in the courts of that state after such corporation has duly complied with the statutory requirements. (p. 142.)

Bradshaw, Rhoton & Helm, for the appellant.

Marshall & Coffman, for the appellee.

205 MCCULLOCH, J. The only question raised by this appeal is whether a foreign corporation doing business in this state can recover upon a contract made by it without having complied with the statute requiring that such corporations, before attempting to do business in the state, shall file with the Secretary of State and county clerk a certified copy of their articles of incorporation.

Kirby's Digest, sections 825, 826, 827, 828, 829, and 830, provide that a foreign corporation shall, before doing business in the state, file in the office of the Secretary of State a copy of its charter and a certificate designating an agent upon whom process may be served, and declare that if any corporation shall fail to comply with the statute, it shall be subject to fine, and that no suit can be maintained to enforce its demands.

Appellee complied with this statute before entering into the contract sued on.

The legislature enacted a statute May 23, 1901 (Kirby's Digest, sections 832, 833), section 1 of which provides that a foreign corporation, before it shall be authorized or permitted to establish or continue its business in this state, shall file with the Secretary of State and county clerk a copy of its articles and a statement of the proportional part of capital stock in its business in the state and county. The second section of said act is as follows: "That no corporation formed or organized in another state, territory, county or country, shall be authorized or entitled to make any contract in this state until it has complied with the provisions of the foregoing section, nor shall it be authorized to sue on any contract made in this state until the provisions of section one (1) of this act are complied with; provided, that corporations now doing business in this state may have sixty (60) days to comply with this act."

This act was not complied with until after the commencement of this suit to enforce the contract, which was entered into on March 8, 1902.

In the two cases of Buffalo Zinc etc. Co. v. Crump, 70 Ark. 525, 91 Am. St. Rep. 87, 69 S. W. 572, and Sutherland-Innes Co. v. Chaney, 72 Ark. 327, 80 S. W. 152, it was held 206 that a foreign corporation which complied with the first-named statute after it had commenced an action was entitled thereafter to maintain it. In each of those cases the contract sued on was entered into prior to the enactment of the first-named

statute (February 16, 1899), and the suit commenced after its enactment.

In the case first cited above the court said: "The penalties of the act in question are, doubtless, intended to compel an observance of its terms. When that is done, its purpose is accomplished, the condition upon which the right to maintain an action depends is performed, and the plaintiff can in the future prosecute it to a final judgment.”

It will be observed that there is a substantial difference between the provisions of these two statutes. In addition to requiring, as a prerequisite to doing business in the state. the performance of entirely different acts on the part of the corporations, the first-named statute expressly provides that in the event of failure to comply therewith it shall be subject to fine of one thousand dollars. It is noteworthy also that a prior statute on the subject (Act of April 4, 1887) provided that in the event of a failure of a corporation to comply with its provisions all contracts made with citizens of the state shall be void. The statute now under consideration contains no such provision. It merely declares that "no foreign corporation shall be authorized or entitled to make any contract in this state, nor to sue on any contract made in this state, until it has complied with the foregoing section."

Professor Beale in his late work on Foreign Coporations (section 213) says: "The weight of authority supports the view that contracts made by foreign corporations within the state before compliance with the statute are not void, and that suit may be brought upon them either by the other party or (after compliance, if that is, as often happens, made a condition of suing) by the corporation." While there is much conflict in the authorities, they seem to sustain the statement of the author: Wright v. Lee, 2 S. Dak. 596, 51 N. W. 706; Security Savings etc. Co. v. Elbert, 153 Ind. 198, 54 N. E. 753; Neuchatel Asphalte Co. v. City of New York, 155 N. Y. 373, 49 N. E. 1043; Enterprise Brewing Co. v. Grime, 173 Mass. 252, 53 N. E. 855; People v. Hawkins, 106 Mich. 479, 64 N. W. 736; Blodgett v. Lanyon Zinc Co., 120 Fed. 893, 58 L. R. A. 79; Alleghany Co. v. Allen, 69 N. J. L. 270, 55 Atl. 724.

207 The New Jersey court of errors and appeals in the case cited above said: "The tendency of judicial decisions on this subject, where the statute does not declare the contract to be void, is to a strict construction, maintaining the

validity of the contract and holding that the only effect of such legislation in the state where it is enacted is to impose the prescribed penalties and the expressed disability."

This court, in the case of State Mutual Ins. Assn. v. Brinkley Stave Co., 61 Ark. 1, 54 Am. St. Rep. 191, 31 S. W. 157, 29 L. R. A. 712, held that the contract of a foreign insurance company which had not complied with the requirements upon which such corporations could do business in the state was not void, for the reason that the statute did not in terms declare such contracts to be void. That decision seems conclusive of this case. The only distinction between the two cases is that the insurance statute imposes a penalty for doing business in the state without having complied with its terms, whilst the statute under consideration imposes no penalty further than to declare that no suit may be maintained by the corporation until the terms of the statute be complied with. We do not think this alters the rule. The statute does plainly prohibit the maintenance of a suit until its terms are complied with, and, in the absence of a provision expressly declaring the contract to be void, we do not feel at liberty to say that the legislature intended to fix the latter penalty. If it had been intended to declare the contract absolutely void and of no effect, the further provision that no suit should be maintained thereon was superfluous. Learned counsel for appellant contend that the latter provision was, however, intended to apply only to contracts made before the passage of the statute, so as to enable the corporation to qualify itself to enforce valid contracts entered into before its passage. We do not agree with them that the provision is so limited in its operation. It manifestly and in express terms applies to "any contract made in this state."

We, therefore, hold that a contract made by a foreign corporation before compliance with the terms of the statute is not void, but may be enforced in the courts of the state after it has duly complied with the statutory requirements.

Judgment affirmed.

Foreign Corporations which have not complied with the statutes of a state have nevertheless been permitted in some instances to maintain suits in its courts for the recovery of debts: Garratt Ford Co. v. Vermont Mfg. Co., 20 R. I. 187, 78 Am. St. Rep. 852; Tri-State Amusement Co. v. Forest Park etc. Amusement Co., 192 Mo. 404, 111 Am. St. Rep.

511.

GEORGE v. NORWOOD.

[77 Ark. 216, 91 N. W. 557.]

JUDICIAL SALES—Inadequacy of Price.—A judicial sale will not be set aside for inadequacy of price, unless the inadequacy is so great as to shock the conscience, or unless there are additional cireumstances against its fairness. (p. 144.)

JUDICIAL SALES-Setting Aside for Advanced Bid.—In the absence of fraud, irregularity or misconduct affecting the validity of a judicial sale, it will not be set aside and confirmation refused in order to allow the bid of the purchaser to be advanced by another person. (p. 144.)

JUDICIAL SALES-Discretion of Court.-An accepted bidder. at a judicial sale acquires no independent rights until the sale is confirmed by the court, and while the court may exercise discretion in confirming or rejecting the sale, yet such discretion must be exercised according to fixed rules, and not arbitrarily, and the bidder has the right to insist upon the exercise of such discretion in such proper manner. (p. 145.)

JUDICIAL SALES-Duty to Ratify.-If a judicial sale is made in all respects according to the terms of the decree, and neither fraud, mistake, nor misrepresentation can be alleged against it, the faith of the court is pledged to ratify and confirm it. (p. 146.)

George & Butler and R. E. Craig, for the appellant.

Hooker & Cone, for the appellee.

217 MCCULLOCH, J. Appellant G. P. George, Jr., became the purchaser of land at a sale made by commissioner in chancery, and appeals from a decretal order of the court setting aside the sale and refusing to confirm it.

The land was advertised and exposed to sale by the commissioner in accordance with the decree of court. Appellant bid the sum of four thousand dollars therefor, and, being the highest bidder, the commissioner knocked the same off to him at that price, and reported the sale to the court. One of the parties to the suit filed exceptions to the report on the alleged ground that the price was grossly inadequate, and appellee W. T. Cone offered an advance bid of five thousand dollars for the land. The court made a finding that the price for which the land was sold-four thousand dollars-was grossly inadequate, offered to permit appellant to advance his bid to five thousand dollars, which appellant refused to do, and then set the sale to appellant aside, and accepted the bid of appellee Cone, and