180 Mo. 568 | Mo. | 1904
The appellant is a building and loan association, and respondents are stockholders therein. On May 10,1892, respondents borrowed from appellant eight hundred dollars, and gave their bond for that sum, and to secure its payment gave a deed of trust on two lots owned by them in the town of St. George, in Buchanan county, in this State. After having made the regular monthly payments due on account of said bond, in accordance with the requirements of appellant association, and as expressed in said bond and deed of trust, for 76 consecutive months, respondents ceased further payments, and demanded of appellant that it release or cause to be released of record, the deed of trust given to secure said loan, and upon appellant’s refusal to comply with said request, brought-this suit in which they pray the court “for judgment and decree declaring the said bond fully paid and that the deed of trust be fully paid and released, satisfied and cancelled, and that plaintiffs have judgment against defendant in the sum of $64.99, and for such other and further orders, judgments and decrees as to the court may seem proper. ’ ’
It is not the claim of plaintiffs that their bond given to appellant had been fully paid by reason of a compliance on their part with all the stipulations and requirements of said bond and the deed of trust securing
To the averments of plaintiffs’ petition defendant answered, admitting its corporate existence under and by virtue of the laws of the State, as a building and loan association, as alleged in plaintiffs’ petition; that plaintiffs are the owners of the real estate described therein, subject only to its deed of trust thereon; that plaintiffs borrowed the money and executed the bond and deed of trust named therein, and further answering, denied each and every other allegation of said petition.
At the trial, the court found from the evidence adduced that appellant had not complied with the laws of this State regulating mutual saving fund, loan and building associations, in that the monthly premium charges fixed for the loan to respondents, had not been the result of competitive bidding in open meeting of the board of directors of appellant association; but on the contrary, had been arbitrarily named by appellant and agreed to by respondents; and further, that the charges so made and exacted by appellant of the respondents on account of said loan, exceeded the sum of eight per cent per annum thereon, and treating the transaction as an ordinary usurious loan, as plaintiffs had charged and designated it to be in their petition, the court proceeded
From this judgment and decree, the defendant, after the usual steps taken, prosecuted its appeal, and the case was sent to this court for final determination. Since, however, the case has reached here and appellant has filed its brief, the suggestion is made that the case should be certified to the Kansas City Court of Appeals for determination therein, and in that suggestion we concur.
Appellant in its briefs filed herein now concedes that the premiums charged to, and paid by, respondents on account of the loan in question, were illegal, by reason of the manner in which it was made, and at this time complains only that the trial court did not follow the plans that have been adopted and laid down by the courts of appeal in this State, of applying the various payments made by the borrower and computing interest thereon, where unwarranted charges have been made and exacted, and when the association exacting same is shown to be a solvent, going concern. Appellant’s
Whatever may be said of a suit having for its purpose the cancellation of a deed of trust upon real estate, which it is alleged stands as a cloud upon the plaintiffs ’ title, where, as here, the validity of the instrument itself, as such, is not in question, but its cancellation is sought upon the ground solely that the debt or obligation it was given to secure, has been fully paid or become discharged, and the proceeding is resisted, on part of the defendant holding same, only because the debt or obligation has not been paid in full or become discharged for any reason, it can not be said in such a proceeding that title to real estate is involved within the meaning of the Constitution defining the jurisdiction of this court, and giving it exclusive control of such appeal. The purpose sought by plaintiff herein, as before said, is to have applied to their bond obligation all the different payments made by them on account of said obligation, freed from the usurious burdens attempted to be imposed thereon by defendant association, and if found ample to discharge same, that the deed of trust given to secure said obligation be cancelled. There was no controversy at any time about the title to the land embraced in the deed of trust, which the court was asked to order cancelled and have satisfied upon the record. The object, the purpose, the validity of the deed of trust was recognized throughout the controversy by both plaintiffs and defendant. The defendant' claimed nothing by the deed of trust, and sets up no interest in or title to the land named therein, if the bond it secures is found to be paid. The existence, or the non-existence, the payment or the non-payment of the original debt se
So much has recently been said by this court upon this subject that its further discussion at this time could serve no useful purpose whatever, and we will now content ourselves with a simple reference to a few of those cases. [Klingelhoefer v. Smith, 171 Mo. 455; Balz v. Nelson, 171 Mo. 682; Granitoid Co. v. Klein, 170 Mo. 225; Vandergrif v. Brock, 158 Mo. 681; Bradley v. Ins. Co., 163 Mo. 553; Bonner v. Lisenby, 157 Mo. 165; Edwards v. Railroad, 148 Mo. 513; Rothrock v. Lumber Co., 146 Mo. 57; Gay v. Sav. & Bldg. Assn., 149 Mo. 606; Price v. Blankenship, 144 Mo. 203; State ex rel. South Mo. Pine Lumber Co. v. Dearing, 180 Mo. 53.]
The appeal in this case should have been taken to the Kansas City Court of Appeals, and to that court it is now ordered .transferred for final determination and disposition.