130 Ala. 294 | Ala. | 1900
It is shown by the bill that the complainants for the purpose of obtaining a loan, became members of the defendant company, the Central Building and Loan Association, subscribing for and taking twenty shares of stock in the concern. That they obtained a loan of one thousand dollars, for which they gave their note, and to secure the same executed the mortgage or deed of trust, a copy of which is attached to and made a part of the bill asi an exhibit. The complainants now seek by their bill to enjoin the foreclosure of said mortgage, and the sole ground upon which 'they base their claim for relief is that of usury,- with which said mortgage is averred to be affected. The bill fails to set out the note for which the mortgage was
A demurrer to a hill confesses only matters of fact which are well pleaded, and not conclusions or inferences of law or fact.—McCreery v. Barney National Bank, 116 Ala. 228; Sheffield T. & St. R’y Co. v. Rand, 83 Ala. 298; Lake v. Security Loan Asso., 72 Ala. 207.
Tt. is averred in the bill “that there was no provision in the mortgage by which a time was fixed for maturing the indebtedness except at such time as said alleged stock might become worth par.” The mortgage or deed of trust which is made an exhibit to the bill by its terms is a security only for the loan and interest thereon, and fixes the rate of interest at 6 per cent per annum, payable monthly, and also provides that the debt shall be paid “on or before nine years from date.” From this a. repugnancy in the averments of the bill results, which rendered the bill subject to the sixth assignment of demurrer.—Little v. Snedicor, 52 Ala. 167.
By .the terms of the mortgage, the charter and by-Iuavs of the defendant association, of which the complainants were members, are referred to and expressly made a part of the contract of loan, and should have
So the averment that the transaction was single and that the issuance of stock was “fictitious” and done to cover and conceal the intention to charge usury, without setting forth the entire contract of loan and subscription for stock, or the substance of such contract, or some sufficient reason for the failure to do so, can be regarded as nothing more nor less than the statement, of a conclusion.
The bill avers that the complainants have never voted said stock, but it does not deny the right to vote the same, nor does it negative the right of the complainants to participate in the profits of the association. It may be that if the certificate of stock, and the charter and by-laws of the association which are referred to in the mortgage and made a part of the contract of loan, were set out in the bill, the dual character of stockholder and borrower would be shown, thereby bringing the case within the principle laid down in Southern B. & L. Asso. v. Anniston L. & T. Co., 101 Ala. 582, and the more recent cases following that case, of Sheldon v. Birmingham B. & L. Asso., 121 Ala. 283; Hayes v. Southern B. & L. Asso., 124 Ala. 663, and Nonnemacher v. Loom Co., 127 Ala. 531.
The contract stipulates for the payment of the loan and interest at the home office of the association at Chattanooga, Tenn. The contract in terms, also, fixes the rate of interest at six per cent per annum. When
There was no error in sustaining the demurrer to the bill and the. decree of the chancellor will be affirmed.
Affirmed.