63 Neb. 525 | Neb. | 1902
This suit- was brought in the district court of Platte county by Joseph Anselme against the-American Savings & Loan Association and William D. Hale, receiver of said association, to cancel and satisfy of record a certain mort
The record discloses that the American Building & Loan Association was organized as a corporation in 1887, under the Iuavs of the state of Minnesota, with its home office at Minneapolis. Subsequently the name of the corporation was changed to the American Savings & Loan Association, under which name it continued to transact business until January 14, 1896, Avhen William D Hale was duly appointed receiver of said association to Avind up its affairs. In December. 1888, the plaintiff became a member of said association and subscribed for forty shares of its capital stock. Later he surrendered ten shares, and as they figure in no manner in the present controversy, the mattei will 'be treated as a subscription for thirty shares. Oh December 26, 1888, said association issued to plaintiff its stock certificate for thirty shares, which, was accepted by him upon the'terms and conditions therein set forth, and subject to the provisions of the by-laws, by which the plaintiff obligated himself to pay to the association at its home office, in Minneapolis, on the 26th day of each and every month after the date of the certificate, sixty cents per share, as monthly dues upon said stock, until the same should become matured and of the value of $100 per share. The bylaws further provided that its funds could be loaned to its members upon approved real estate security, giving the priority of its loans to such members as would hid the highest premium therefor. On March 8, 1889, the plaintiff made an application for a loan of $1,500 by AAray of anticipating the value of his 30 shares of stock at their maturity, and hid $1,500 premium. The application was accepted by the association and the amount applied for duly loaned to the plaintiff. To secure the payment of this loan, and to
The important question presented by this case involves a determination of the rule to be invoked in a settlement between a receiver appointed to wind up the affairs of an insolvent building and loan association and its borrowing members. It is conceded that the receiver is not entitled to recover anything on account, of the premium bid, for the obvious reason that the inducement held out by the association, that ultimately both loan and premium could be paid by a surrender and cancelation of the stock, could not be carried out by the association. It would be manifestly unjust to consider the premium included in the bond as a part of the assets of the association' for the plain reason that it has not been earned. But the money actually received by the borrower is a part of the earned assets of the association, was in its treasury at the time of the loan, and, of course, should be repaid.
It is contended on the part of the plaintiff that he should be given credit upon the amount of money actually received by him for all that he has paid into the association, both as interest ion the loan and for monthly dues upon his stock, together with interest thereon from the dates of'the sc eral
The testimony shows that the defendant was a building and loan association organized under the laws of the state of Minnesota, and under the laws of that state the transaction here set out did not come within the law prohibiting the taking of usury, ft was agreed that the association had complied with the laws of this state, permitting it, as a foreign building and loan association, to transact busi
The defendant is entitled to a decree for the sum of $1,500, with interest at seven per cent, from May 24, 1889, upon which should be credited the several payments of 'interest, as above set forth, with interest thereon from the date of the several payments at seven per cent. ■
It is therefore recommended that the district court set aside its former judgment in this case, and enter a decree in favor of the defendant upon his cross-petition for the amount as* indicated in this opinion, with the usual decree of foreclosure.
By the Court: For the reason stated in the foregoing opinion, the judgment is reversed, and the district court directed to enter a decree upon the cross-petition in favor of the defendant and against the plaintiff, in accordance with this opinion.
Reversed.