the business of insurance in the latter state. The case was taken to the supreme court of appeals of Virginia, and thence to the supreme court of the United States. The court decided that there was "nothing in the statute of Virginia which conflicts with the constitution of the United .States," and the judgment of the supreme court of appeals of that state was affirmed. Mr. Justice FIELD, in delivering the opinion of the court, says: "Having no absolute right of recognition in the other states, but depending for such recognition, and the enforcement of its contracts, upon their assent, it follows as a matter of course, that such assent (to a foreign corporation to transact business therein) may be granted upon such terms and conditions as those states may think proper to impose. They may exclude the foreign corporation entirely; they may restrict its business to particular localities; or they may exact such security for the performance of its contracts with their citizens, as in their judgment will best promote the public interest. The whole matter rests in their dis

cretion."

Now, as the granting assent is entirely a matter of discretion, and the terms a matter of absolute will, can it be said that when such discretion and terms are designated in a statute, general in its nature, the mere fact that a particular foreign corporation, selecting its own time, comes in and files the required papers and makes the required payment, dealing with a mere ministerial officer only, who has no power to give assent or to withhold assent on the part of the state, that such proceedings constitute a "contract" which the legislature of the state cannot annul or abrogate by changing or repealing the law. In the Land Grant Ry. & T. Co. v. Commissioners of Coffey Co. 6 Kan. *245, *252, this court made a decis

ion relating to foreign corporations which is instructive upon this *223 question. The logic of said decision is that a foreign cor*pora

tion cannot migrate to this state, and can exercise no right here except under "state comity." Now, as "state comity " exists only in the absence of any legislative or statutory rule, the legislature, exercising the sovereign power of the state, may prescribe any terms it pleases concerning such foreign corporations. And in view of the decisions above mentioned, and of the nature and character of the authority or permission given to a foreign corporation to transact business in this state, it would seem that such permission or license, whether so expressed in the law or not, is always subject to the legislative will. The legislature may at any time alter or repeal the law under which the license is obtained; they may expressly revoke all licenses; they may impose any new terms or conditions, and require new or additional statements, at their pleasure. "The whole matter rests in their discretion." To deny this position is to assert that a foreign corporation, having obtained a "certificate of authority," (which in law is no more nor less than a certificate of a ministerial officer that the corporation has complied with certain requirements of the law,) may continue to transact business for a given period, say one year, even though it become insolvent; even though it violate its charter; even though its charter is repealed by the state that created it; even though it had not in fact complied with the statute, but had obtained such certifi

cate through fraud or mistake; even though it should become apparent that its contracts were but a snare to entrap and swindle the ignorant and the unwary. More than all this, to deny the power of the legislature to impose new terms and prescribe new conditions, at its pleasure, is to assert that a foreign corporation is an institution which, once admitted to enter the state, towers above the law, and may rob and plunder, and riot in its ill-gotten gains with impunity. And such is the legitimate deduction of the argument that the "license" issued to such a corporation is a "contract," the obligation of which cannot be impaired. Such doctrine is not only unsound, but it is dangerous. While it is admitted *224 that *foreign corporations may make contracts with other corporations, or with individuals, it is very certain that a "license" or "permit" to transact business in the state, is not a "contract" with the state.

The existence of the legislative power being shown, the question is, what was the intent, and what the effect, of the act of March 1, 1871? By section 81 it is declared that it shall take effect, "from and after its publication," and it was published March 9th. Sections 22 and 23 in express terms make the provisions of the act apply to all insurance corporations "doing business" in Kansas, declaring it to be "unlawful" to engage " in the business of insurance, or to "enter into any contract" of insurance," without first having complied" with said act, and impose a fine for every violation of the law; and to make it still more explicit section 41 reasserts that "it shall not be lawful for any insurance company organized or associated under the laws of any other state, or any foreign government, to transact any business of insurance in this state without first procuring from the superintendent of insurance a certificate of authority so to do." Words cannot be plainer. But to show that the sections cited were intended to put the law into force at once, on being published, as to all insurance corporations of other states and governments we have but to examine sections 43 and 48. Section 43 provides that "all (fire) insurance companies heretofore organized under the laws of this state shall be allowed one year from the last day of February, 1871, to comply with the foregoing sections of this act;" and section 48 provides "that existing life insurance companies formed under the laws of this state shall be allowed six months from the passage of this act within which to comply with its provisions relating to such companies." These exceptions, deliberately made in favor of the companies of this state, add force to the argument that it was the intent of the law to apply at once to all companies of other states, and that they must comply with its provisions before they could legally commence or continue business in this state. "The exception affirms the rule in cases not excepted." The plaintiff in error having *deliberately violated the law, the judgment should be affirmed.

*225

KINGMAN, C. J. An action was instituted against the plaintiff in error, a foreign corporation, engaged in the business of fire insurance in. this state, without having obtained from the superintendent of insurance of the state a certificate of authority to transact such business of insur.

ance in this state, and without having any legal right, warrant, or authority to transact the business of fire insurance in the state of Kansas. The answer was a general denial and a special defense, setting up a license or certificate of authority issued to the plaintiff in error by the auditor of state, on the twenty-fifth of February, 1871, authorizing the corporation to transact the business of fire insurance in the state from the first day of March, 1871, until the twenty-eighth of February, 1872. The issues so made were tried by the district court, without the intervention of a jury, and resulted in a judgment against the plaintiff in error, to reverse which the case is brought to this court. The case was tried on an agreed statement of facts, and documentary evidence, all of which are brought to this court.

Two questions are presented: First, did the auditor issue a valid certificate of authority to the plaintiff in error, as set up in his answer? Second, did such certificate of authority, if valid, confer upon the plaintiff in error such a vested right to do business until the last day of February, 1872, as would preclude the legislature from imposing further regulations and duties upon foreign corporations as a necessary prerequisite to their transacting business in the state? If the first of these questions is decided in the affirmative, then it will become necessary to determine the second.

We think the record shows a want of conformity with the requirements of the statute on the part of the insurance company in matters essentially requisite to be done by the company under the law. Whether

such informalities can be inquired into in this proceeding, or *226 whether the decision of *the auditor that the company had com

plied with all the requirements of the law, and thereupon had issued his "certificate of authority," is conclusive, need not be decided here. It is an interesting question, and was somewhat elaborately argued; but it is not in our way. There is one fact that is jurisdictional in its character. By section 110, Gen. St. p. 220, it is provided that "before the auditor shall issue any certificate of authority, or any renewal of the same, the corporation or its agent shall pay into the state treasury for the support of the common schools the sum of fifty dollars." The payment of this money was an act to be done by the corporation, and to be done before it had a right to ask for the certificate of authority, and without the payment of which the certificate of authority is a nullity. In this case it appears that the certificate of authority was issued on the twenty-fifth of February, 1871, and that the money was not paid into the treasury until the twenty-first of March thereafter. When the auditor issued the certificate of authority he receipted for the fifty dollars and his fees, and drew on the plaintiff in error his draft for the same, payable on sight, and transferred the same to the Topeka Bank. The draft was paid on presentation, and on the twenty-first of March the money was paid by the auditor into the treasury. Until it was paid into the treasury the state had no interest in it, or control over it, and until it was so paid the auditor had no power under the law to issue the certificate of authority.

Plaintiff in error claims that the state received the money when the auditor drew the draft; that the auditor acted as the agent of the state in receiving the money, and therefore the state cannot in honor deny that it received the money. The argument involves an error of fact, and an entire misapprehension of the duties and powers of a public officer. The error of fact is in assuming that the drawing of a draft payable on sight is the same thing as receiving the money from the drawee; but the much more serious error is found in the declaration that the auditor acted as the agent of the state in drawing the draft, or in receiving the money when it was paid. The limits of an officer's *227 *authority are found in the law. The law in this case, for rea

sons in harmony with our entire financial system, gave no authority to the auditor to collect the money. It is one of the checks of our system that the treasurer receives the state's money, and the amount which he receives shall appear in the records of some other office. It is not necessary to say that the plaintiff in error was bound to know the details of our financial system, or be familiar with its general spirit; but when it came within the state, seeking to extend its business among our people, it was bound at its peril to take notice of express provisions of law stating the terms upon which it could be permitted to do business in the state. One of the conditions was that, by itself or its agent, it should pay a certain sum into the state treasury before the auditor could issue the certificate, and before it acquired any right to a certificate, or any authority to do business in this state. If the corporation chose to pay this through the auditor, then for that purpose the auditor was the agent of the corporation, and not of the state; and until the money reached the state treasury it was under the control of the corporation and not of the state. Therefore, when the certificate of authority was issued, one of the vital conditions upon which it could be granted had not been complied with on the part of plaintiff in error. It was a condition that neither the auditor nor any other officer could waive or dispense with. Because of the non-payment of this money the certificate itself was void, and presented no defense to the action.

This conclusion renders it unnecessary to consider any of the other questions raised in this case. The judgment is affirmed.

(All the justices concurring.)

*228

*S. G. BRITTON v. EDMUND L. HUNT.

January Term, 1872.

Parties: Foreclosure: Heirs. In an action to foreclose a mortgage, where the mortgagor is dead, his heir is an indispensable party; and no judgment for the sale of the premises can be the basis of a title where the administrator is alone the party to the suit. [Curtis v. Parker, 29 Kan. 133, Reading v. Wier, Id. 430.]

Error from Lyon district court.

Ejectment brought by Hunt, who claimed to be the legal and equitable owner of the premises in controversy. Britton answered, admitting possession, but denying plaintiff's title and right of possession. The case was tried at the December term, 1870, upon an agreed statement of facts, a sufficient statement of which appears in the opinion. The district court found as conclusion of law that the plaintiff was the legal and equitable owner of the premises, and entitled to the possession of the same, and gave judgment accordingly.

Peyton & Sanders, for plaintiff in error.

By the common law personal property goes to the administrator, and the real estate to the heir; and our statute nowhere changes the rule. It is true that the administrator takes possession of land and disposes of rents and profits, and so did the guardian under the common law; yet no one will contend that the land went to the guardian, or that the heir was not an indispensable party to a foreclosure suit. That personal property goes to the administrator, and real estate to the heir, see Comp.

Laws, p. 543, § 215, and p. 469, §§ 5, 16. That the heir must be *229 a party to a foreclosure suit, see Comp. *Laws, p. 192, § 421;

Barb. Parties, 490, 491, 496; Milroy v. Stockwell, 1 Ind. 35; Cole v. McMickle, 30 Ind. 94; Nourse v. Ramsy, 2 Bibb, 547; Kwing v. Handley, 4 Litt. 348; Smith v. West, 5 Litt. 48; Meriwether v. Hite, 2 A. K. Marsh. 182; Thomas v. Hite, 5 B. Mon. 602; Craig v. Hewitt, 7 B. Mon. 476; Keas v. McMillan, 2 J. J. Marsh. 13; Hare v. Bryant, 7 J. J. Marsh. 376; John v. Hunt, 1 Blackf. 324; Moore v. Starks, 1 Ohio St. 369. Harmon Bassett, the heir, not being made a party to the foreclosure suit, was not by virtue of said suit divested of his title or interest in and to said real estate, and is therefore the real owner of the same; and plaintiff in error being in actual possession of said premises, his title is good against all the world save the real owner.

A personal judgment against the administrator would not authorize the issuing of an execution against the property of a decedent. A judgment, to become a claim against the estate, must be filed in the probate court. No authority can be found for issuing an execution or order of sale from the district court against the property of a decedent. Hence the issuing of the order of sale in the foreclosure suit, and the proceedings under it, were void. Comp. Laws, pp. 534, 540, §§ 151, 153, 154, 155, 157, 172, 189, 191; Gibson v. Armstrong, 7 B. Mon. 481.

The mode of selling land to pay the debts of decedents is prescribed by statute; and like all other statutory proceedings, in order to acquire any right or title to property by virtue thereof, the statute must be strictly followed, otherwise the proceeding is void. Comp. Laws, p. 529, §§ 118, 119, 120, 121, and 141.

Almerin Gillett, for defendant in error.

The particular error which plaintiff in error assigns is "that the district court should have rejected the judgment of foreclosure, and proceedings thereon, in the case of 'Ebenezer Maynard against J. H. Hunt, as administrator of the estate of E. D. Bassett."" It is contended that said