Buist v. Bryan
21 S.E. 537
S.C.
1895
Check Treatment

Lead Opinion

The opinion of the court was delivered by

Mr. Justice Gary.

This is an appeal from an order of the Circuit Judge "overruling a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The complaint and exceptions Nos. 1, 2, and 3 will accompany the report of the case.

*125The appellant contends that the complaint shows upon its face that the mortgage has beeD paid. In considering this question, this court must determine whether the monthly payments for subscriptions to the shares of stock should have been applied upon the mortgage. The authorities upon this question are by no means harmonious. The question has not directly been decided in this State, though there are authorities bearing upon this point. The authorities in our State have, however, determined two questions: (1) That the money advanced was a loan; (2) that where the mortgage is to secure the monthly payments of interest and dues, and the contract is declared to be usurious, the borrower is entitled to a credit, not only for the amount paid as interest, but also for the amount paid for subscription on the shares of stock, in ascertaining the amount due on the mortgage.

In the case of Association v. Bollinger, 12 Rich. Eq., 126, it appears that in December, 1854, Bollinger, who was a member of the association and holder of ten shares of the capital stock, bid off $2,000 of the funds of the corporation at the premium of thirty-five per cent. The contract, in the beginning, allowed a discount of $700 on an advance of $1,300, which was called a purchase of $2,000 of the funds of the corporation. This sum of $2,000, and interest at six per cent., was to be repaid in sums of twenty dollars at the end of each month succeeding the 14th of December, 1854, the date of the bond and mortgage. These were the provisions of the bond. Before the second Monday of December, 1854, the defendant had made thirty-two monthly payments, amounting to $320. After the execution of the bond and mortgage, the monthly payments required by the condition thereof were duly made until November, 1856. This constituted a further sum paid of $460. The actual payments on the loan or advance amounted to $1,480. Bollinger set up the plea of usury, which was sustained. Chief Justice O’Neall, delivering the opinion of the court, after reciting the provision of the usury law then of force, concludes as follows: “Dnder this provision, the corporation will be entitled to recover the sum actually loaned, deducting the payments made. The result will be, that $1,300 will be the principal, on which payments to the *126amount of $1,480 have been made; so the corporation has been overpaid $180. The consequence is, that the complainants bill must be dismissed.” It will thus be seen that, in determining the amount due under the mortgage, the association was required to deduct, not only the amount of the dues paid after the execution of the mortgage, but also the amount of those paid before the execution of the mortgage.

In the case of Mechanics’ & Farmers’ B. & L. Association v. Dorsey, 15 S. C., 462, it appears that in 1878 the defendant obtained a loan of $1,000 from the said company, and, to secure this loan, gave his bond, with mortgage of real estate, conditioned to pay to the association monthly the sum of $17.25, itemized as follows: $5 for monthly subscription on his share; $5 for interest on the sum advanced to him, at the rate of six per cent, per annum; and $7.25 for the monthly premium which he contracted to give for the loan — in all, $17.25. He obtained this sum at public sale, agreeing to give a premium of $1.45, which premium was to be paid monthly, and amounted to $7.25 for five shares. For this amount and for the monthly interest, as also the monthly subscription on his five shares, he gave the bond and mortgage above mentioned; the monthly payments, as therein stated, being, in the aggregate $17.25. The defendant failed to meet his bond, and suit was commenced to foreclose the mortgage. The defendant pleaded usury. The following appears in the decree of the Circuit Judge, which was affirmed on appeal to the Supreme Court: “It is the opinion of this court, that the interest paid to the association plaintiff by the defendant, John Dorsey, should be credited upon the dues that should legally have been collected by the plaintiff, to wit: $5.83 per month, which is the interest monthly on $1,000 at the rate of seven per cent, per annum. The amount in interest, instalments, and premium paid- into the association plaintiff from January, 1878, to November, 1879, by the defendant, John Dorsey, was $174.75. The amount to which the association was entitled from the same date to November, 1879, at seven per cent, per annum, was $134.09, leaving a balance of $40.66 in favor of John Dorsey. It is, therefore, ordered, adjudged, and decreed, (1) that the complaint be dismissed, with costs; (2) *127that the balance of |40.66 be placed to the credit of the defendant, John Dorsey, on the books of the association plaintiff, who shall apply the same, at the rate of $5.83 monthly, to the satisfaction of the defendant’s dues, until the said amount of $40.66 shall have been exhausted.” The complaint in that case alleged that the defendant, at the time the action was brought, to wit: September, 1879, was in arrears nine mouths of subscription, interest, and premium, and that the principal sum was, therefore, due also.

Chief Justice Simpson, delivering the opinion of the court in that case, says: “We regard the question here as settled by the case of Columbia B. & L. Association v. Bollinger, 12 Rich. Eq., 124, in which a very learned and able opinion of the distinguished chancellor on the Circuit, Chancellor Carroll, was overruled by the Supreme Court. That case and this ai’e almost identical. The charters of the two companies were nearly the same; the by-laws almost exactly alike. A stockholder in that company, as in this, borrowed in advance a certain sum of money, which he expected would ultimately be his. He borrowed at public bidding, as in this. He contracted, as here, by bond and mortgage, to pay the monthly interest. The premium, instead of being paid monthly, was deducted at the time of the contract. This was paid in cash, instead of by monthly instalments. This is the only difference between the cases. Is this a difference in principle? We do not so understand it. The court in that case held the contract usurious; Judge O’Neal], with that strong conviction which characterized all of his opinions, declaring ‘that there was no doubt about it;’ and, but for the earnest and able decree of Chancellor Carroll, he would not have thought it necessary even to look into the authorities on the subject. The argument of Chancellor Carroll, and the opinion of the Supreme Court overruling it, present the two opposing views on this subject. The decree of Chancellor Carroll is based upon two prominent grounds: First. That the dealing of the parties was a transaction between partners and in reference to partnership funds, and was not a loan. He cited Silver v. Barnes, 6 Bing. N. C., 180, and several English authorities. Second. That the money advanced to Bollinger was *128but that which he (Bollinger) would get when the corporation wound up, and if he was willing to deduct $300 — the premium— because he was getting the money in advance, there was nothing illegal in this. In that case, as has already been stated, the premium was deducted at the time the contract was made, instead of being contracted to be paid in monthly instalments, as the interest was to be paid. The chancellor thought that, in this respect, it was like a party agreeing to take less for a debt than the amount actually due, and, having executed the contract, he could not afterwards dispute or repudiate it. These positions, which are the only ones that can be taken with any plausibility in support of such a contract, after full consideration by the Supreme Court, were overruled, and the contract of Bollinger was declared usurious. We are bound by this decision.” In the case of Thompson v. Gillison, 28 S. C., 542, the monthly stock payments were calculated as payments on the bond, in testing the question of usury.

1 2 The authorities establish the following propositions: (1) That the appointment of a receiver terminates the contract with the mortgagor, as originally contemplated. (2) That the mortgagor, who is also a shareholder, is not liable for monthly dues accruing after the appointment of a receiver. (3) That upon the determination of his contract with the association, as originally contemplated, the mortgagor is entitled as credits on bis mortgage, both for the amounts paid as interest, and also as dues on his shares of stock. (4) That, where the amounts paid by the mortgagor as interest and dues aggregate a sum equal to the amount the mortgage was given to secure, a complaint for foreclosure of 'the mortgage will not be sustained. (5) That i.f the association goes into the hands of a receiver before the interest on the amount actually advanced, at the rate specified in the contract, and for the length of time the contract was in full force and effect, equals the amount of the premium; then the amount due under the mortgage is to be ascertained by calculating interest on the amount actually advanced, at the rate agreed upon, for the length of time the contract remained of force as originally entered into, and deducting from such *129amount all payments of interest and dues; the amount paid as interest and dues not to bear interest. In such a contract as this, the interest would be calculated at the rate of ten per cent, per annum. (6) The assignment and transfer of the shares of stock by the mortgagor as collateral security for the loan, and consolidating the interest and dues in the mortgage, show that the amount paid monthly, consisting of interest and dues, is to be regarded as what is called “redemption money,” and raises an implied agreement that such payment shall be credited on the mortgage.

In support of our positions on these questions, we cite the following authorities: Thomp. Bldg. Ass., c. 8, §§ 30, 42, 50; Id., c. 12, §§ 5, 13; End. Bldg. Ass., §§333, 373, 496, 498, 502; 2 Am. & Eng. Enc. Law, pp. 629, 642; Randall v. National B. & L. Protective Union (Neb.), 60 N. W. Rep., 1019; Brownlie v. Russell (1883), L. R., 8 App. Gas., 248. The leading authorities sustaining a contrary rule as to payments are, Strohen v. Association (Pa. Sup.), 8 Atl. Rep., 843; Rogers v. Hargo (Tenn.), 20 S. W. Rep., 430; Towle v. Society, 61 Fed. Rep., 446.

The complaint shows upon its face that the payments made by the defendant exceed the amount due under the mortgage. We decide nothing as to the demurrer to the answer. This action of foreclosure cannot, therefore, be sustained.

It is the judgment of this court, that the judgment of the Circuit Court be reversed, and the complaint dismissed.





Rehearing

In this case there was a petition for rehearing, which was refused by an order of May 14, 1895,

Per Curiam.

3 After a careful consideration of this petition, the court is unable to discover that any material fact or principle of law has been either overlooked or disregarded, and hence there is no ground for a rehearing. It is, therefore, ordered, that the petition be dismissed and the stay of the remittitur heretofore granted be revoked.