52 S.E. 48 | S.C. | 1905
October 7, 1905. The opinion of the Court was delivered by The Equitable Building and Loan Association, a corporation having its principal place of business in Augusta, Ga., brings this action to foreclose a mortgage on land in Lexington County, S.C. executed by the defendant Corley, a resident of South Carolina. The land was afterwards conveyed by Corley to Roof and Barre, and by them to the defendant Roof Barre Lumber Company. The answer sets up the plea of payment. The first question arising under this plea is, whether all sums paid to the Equitable Building and Loan Association by Corley and his grantees, after Corley made the mortgage and borrowed the money, should be credited on the sum borrowed and interest, *406 or should be applied not only to that, but also to the expenses of the association and premiums, as provided by the bond.
We first consider this question as it effects the rights of Corley, the original mortgagee. If the contract is governed by the law of this State, as defendants contend, the former method of computation would be correct, and the bond and mortgage would be overpaid. Association v. Holland,
The complaint alleges "that at Augusta, in Georgia, on August 3, 1895, the plaintiff advanced to the defendant, Patrick H. Corley, on four shares of the stock of this plaintiff, held by him, the sum of four hundred dollars, and in consideration thereof the said Patrick H. Corley made, executed and delivered to plaintiff his bond, dated August 3, 1895, in the penal sum of eight hundred dollars." The pleadings and the bond and mortgage are silent as to the place of payment. The law of the place where the contract *407
is made governs as to its construction and the obligations which arise from it where it does not provide for the application of the law of a different place, and makes no mention of the place of payment. 9 Cyc., 668; Touro v. Cassin, 1 N. McC., 173; Pegram v. Williams, 4 Rich., 219. Here it is not only admitted the contract was made in Georgia, but also that by the bond the parties expressly contracted, "that this obligation is a Georgia contract, and in all respects subject to and governed by the laws of Georgia." The law applicable to such an agreement is so well and accurately stated by Scates, C.J., in McAllister v. Smith,
The serious question remains whether the plaintiff can foreclose the mortgage on the land in the hands of the Roof Barre Lumber Company, a subsequent purchaser, for more than a debt of $400 and interest, less the payments made. The bond contemplates that Corley should remain a member of the association after he became a borrower, with the obligation of a member to pay $1.20 per month on each share of his stock until the series to which his certificate belonged should mature — maturity being the date when these payments would aggregate enough, after taking out expenses and premiums, to liquidate the principal of the debt of $400. It contemplates further that he should pay in addition each month interest on the $400 at the rate of six per cent. per annum until the stock should mature, and that his four shares of stock should be assigned to the association as collateral for the obligations of the bond. Upon these payments being kept up until the maturity of the series, the bond stipulated that the obligation would be at an end. The mortgage contains none of these provisions as to the payment of stock, but merely recites that it is given to secure the payment of a bond in the penal sum of $800 conditioned for the payment of $400, "as in and by the said bond and conditions thereof, *409
reference being thereunto had, will more fully appear." There is nothing whatever in the record of the mortgage to indicate or to put a purchaser of the land on notice that Corley was a member of the association or anything more than an ordinary debtor; for we do not think the fact that it was given to a building and loan association and no date of maturity specified, could be regarded sufficient for that purpose. If, therefore, there were nothing beyond the record of the mortgage to show notice of the terms of the bond, the principles of Association v. McCartha,
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.
THE CHIEF JUSTICE did not participate in this opinionbecause of illness. *410