are conducting their business in a fraudulent, illegal or unsafe manner, it is the duty of the Auditor of Public Accounts to appoint a custodian for such associations and call a special meeting of the shareholders and lay the matter before them and require a re-organization or liquidation of the affairs of such associations, to be effected in one of the methods pointed out by the statute. (Hurd's Stat. 1913, chap. 32, pars. 91c, 91d, 91f.) If the stockholders fail to arrange for a re-organization or voluntary liquidation of such associations, it becomes the duty of the Auditor of Public Accounts to report such fact to the Attorney General, whose duty it is to institute proceedings for the purpose of winding up their affairs. (Par. 91h.) The provisions for an annual statement of their affairs, frequent examinations under the supervision of the State Auditor, and a forfeiture of their charters whenever it is found that such associations are conducting their business in a fraudulent, illegal, unsafe or unprofitable manner, were evidently enacted for the purpose of confining such corporations to a transaction of such business, only, as is strictly within their charter powers.

The powers of building, loan and homestead associations organized under the Homestead Loan Associations act, as set forth in section I thereof, (Hurd's Stat. 1913, p. 587,) are limited to "the purpose of building and improving homesteads and loaning money to the members thereof only;" and with respect to their power to acquire and hold real estate, such power is set forth in section 13 of the same act, which provides as follows: "Any loan or building association incorporated by or under this act is hereby authorized and empowered to purchase at any sheriff's or other judicial sale, or at any other sale, public or private, any real estate upon which such association may have or hold any mortgage, lien or other encumbrance, or in which said association may have an interest, and the real estate so purchased, to sell, convey, lease, mortgage or ex

change for other real estate and to dispose of such real estate so acquired at pleasure to any person or persons whomsoever."

The rule for construing statutes of this character is stated in Fritze v. Equitable Building and Loan Society, 186 Ill. 183, as follows: "It is well settled that the powers of a corporation organized under a legislative charter are only such as the statute confers, and the enumeration of these powers implies the exclusion of all others. (Thomas v. Railroad Co. 101 U. S. 71.) The rule of construction applicable to statutory provisions is, 'that every power that is not clearly granted is withheld, and that any ambiguity in the terms of the grants must operate against the corporations and in favor of the public.' (American Loan and Trust Co. v. Minnesota and Northwestern Railroad Co. 157 Ill. 641.) If the power claimed is withheld, 'it is regarded as a prohibition against the exercise of such a power.'" To the same effect is People's Loan and Homestead Ass'n v. Keith, 153 Ill. 609.

In National Home Building Ass'n v. Bank, 181 Ill. 35, in construing the provisions of the statute in regard to acquiring real estate, it was held that building and loan associations could not acquire and hold any real estate except such as had been mortgaged to it or in which it had an interest. On pages 41 and 42 of the opinion it is said: "The purpose of this corporation is the raising of funds to be loaned to its members upon the security of its stock and unencumbered real estate. Manifestly, the business of trading in real estate or acquiring the same, except as incidental to their legitimate business, is wholly foreign to the purpose for which the State has created such corporations and conferred upon them corporate powers. They have no power to take and hold real estate, and contracts made for the purchase of it are not enforceable. (Endlich on Building Associations, secs. 305-308.) Such corporations are not authorized, either by their charters or as an

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incident to their existence, to acquire or hold any real estate, except such as has been mortgaged to them or which they may have an interest in. Not only is this the rule to be derived from the act of the legislature authorizing their incorporation, under the general principles of law, but it is, and always has been, against the policy of the State to permit corporations to accumulate landed estates, or to own real estate beyond what is necessary for their corporate business or such as is acquired in the collection of debts. (Carroll v. City of East St. Louis, 67 Ill. 568; People v. Pullman Palace Car Co. 175 id. 125; United States Trust Co. v. Lee, 73 id. 142; First M. E. Church of Chicago v. Dixon, 178 id. 260.) It is also a settled principle of Ameri(5 Thompson's Law of Corporations, sec. 5772.) If a building and loan association were permitted to invest its money in the purchase of real estate or to traffic or trade in such property instead of keeping within the powers conferred upon it by loaning such money and collecting it, it would not only be exercising powers not granted, but it would be carrying on a business inconsistent with the purpose of its creation and against the fixed and uniform policy of the State. In People ex rel. v. Chicago Gas Trust Co. 130 Ill. 268, it was said (p. 292): "The word 'unlawful,' as applied to corporations, is not used exclusively in the sense of malum in se or malum prohibitum. It is also used to designate powers which corporations are not authorized to exercise, or contracts which they are not authorized to make, or acts which they are not authorized to do,—or, in other words, such acts, powers and contracts as are ultra vires.' In Central Transportation Co. v. Pullman Palace Car Co. 139 U. S. 24, the result of the decisions as to the exercise of powers not granted is summed up, as follows: 'All contracts made by a corporation beyond the scope of those powers are unlawful and void and no action can be maintained upon them in the courts,-and this upon three distinct grounds: the obligation of every

one contracting with a corporation to take notice of the legal limits of its powers; the interest of the stockholders not to be subjected to risks which they have never undertaken; and above all, the interest of the public that the corporation shall not transcend the powers conferred upon it by law." To the same effect is United States Brewing Co. v. Dolese & Shepard Co. 259 Ill. 274, and cases cited.

While it is true that section 13 has been amended and in its present form, as heretofore set out, permits the exchange of property which a homestead and loan association. has lawfully acquired for other property, which was not the case when National Home Building Ass'n v. Bank, supra, was decided, the principles announced in that decision are still the law.

The above cases are decisive of the case at bar. It is admitted that the title and possession of the property are not in appellee but in Carroll, as grantee of Mrs. Chittenden, and that the only right or interest which appellee has in the property is by virtue of the assignment of the contract by Neighbors to it, and the payments, largely from rents derived from the property, claimed to have been made by it, through Neighbors, on the purchase of the property pursuant to the contract. It is clear, under the above authorities, that appellee had no power to enter into the contract or to purchase and hold the real estate in question in that way, and for a court of chancery to grant the relief sought by the bill would be not only lending its aid to assist the appellee in violating the law, but would be actively enabling it to do that which the law forbids it to do. Under the uniform holdings of this court specific performance of the contract cannot be granted under such circumstances.

We do not wish to be understood as saying that where a homestead and loan association has unlawfully acquired title to real estate such real estate cannot be disposed of and the proceeds held for the benefit of the stockholders of the association. The association could be compelled to dis

pose of it, and a shareholder of such an association could by a proper suit bring about the dissolution of such corporation and a distribution of its assets among those entitled thereto. But that is not this case. The bill in this case seeks squarely to enforce a contract for the sale of real estate. The association is seeking to become the owner of the real estate in question contrary to the express law of this State as such law has been construed by this court, but for what purpose is not disclosed in the bill. The decree found that this real estate was, in part, paid for by money of the association, so that the question is squarely raised as to the power of the appellee to become the owner of real estate for general purposes. We think the contract was ultra vires and that the association is not entitled to enforce such contract, and the decree granting the relief sought was

erroneous.

If appellant, were seeking to specifically enforce the contract against appellee there could be no question but that the defense of ultra vires interposed in this case would constitute a good defense to such a suit. The rights of the parties in the premises are reciprocal. Specific performance of a contract will not be decreed at the instance of a party against whom the contract could not be enforced. (Bauer v. Lumaghi Coal Co. 209 Ill. 316.) It is not a matter of absolute right but rests in the sound discretion of the chancellor, to be exercised as the facts and circumstances in each case and the equities between the parties may require. It is not an arbitrary discretion, but is one that is governed by well understood and well settled legal rules and principles of law. (Chicago, Burlington and Quincy Railroad Co. v. Reno, 113 Ill. 39; East St. Louis Railway Co. v. City of East St. Louis, 182 id. 433; Beach v. Dyer, 93 id. 295; Allen v. Woodruff, 96 id. 11.) A contract, to be specifically enforced, must be reasonable, fair, just, mutual, certain and unambiguous, (Barrett v. Geisinger, 148 Ill. 98; Koch v. National Union Building Ass'n, 137 id. 497; Gould