Franz v. Teutonia Building Ass'n, No. 2.

| Md. | Mar 20, 1866

Goldsborough, J.,

delivered the opinion of this Court.

The appeal in this case is taken by the appellant from a decree of the Circuit Court of Baltimore City, passed on the 20th day of September, 1862, pursuant to the Act of 1833, ch. 181, and its supplements.

The objections urged by the appellant to this decree are 1st, that the decree was passed after default.

2nd. That it does not appear by any averment in the appellee’s petition or by proof, that the appellee was incorporated pursuant to the provisions of the Act of 1852, ch. 148.

3d. That the mortgage on which the decree was passed would be void under the Act of 1825, ch. 50, on account of the uncertainty of the time for which it may exist, and the amount that may be paid under it, unless saved by the 1th section of the Act of 1852, ch. 148, and that section only authorizes such mortgages to be made by members of the association. The 1st objection is removed by the decision of this Court pronounced at the present term in the case of Samuel Black vs. David Carroll, p. 251. As to the second objection, we think the appellant is precluded from making it by his own act. By his mortgage he recognizes the right of the appellee to sue in accordance with the Act of 1852. In 6 N. H. Rep., 165, the Court say “the giving of the note is an admission by the defendant of the existence of the corporation, and he cannot now be permitted to deny that there is a duly organized corporation.” See also 5th Halstead N. J. Rep., 274. This, was a case of a mortgage, and it is said, “the mortgage under his hand and seal is as against him, sufficient evidence of the existence of the corporation.” In 14th John’s Rep., 248, where the decision turned on the law of New York, similar to the Act of 1852, it is said by the Court “this is a public law and the certificate becomes a matter of record. The defendant having undertaken to enter into a contract with the plaintiffs in their corporate name, he thereby admits them to be duly constituted a body politic and corporate under such name.” The 3rd objection is covered by the case of Robertson vs. The American Homestead Association, 10th Md. Rep., 391, as to the question of uncertainty of time for which it exists, and the amount that maybe paid under the mortgage.

(Decided March 20th, 1866.)

As to the question whether the 7th section of the Act of 1852, authorizes such mortgages as the one under which the decree in this case was passed by members only, we do-not deem it material to determine whether the appelleewas authorized to take mortgages from others not members. In our opinion, the terms of this mortgage clearly import, that the appellant was a member of the association.

Finding no error in the decree of the Circuit Court, we-will sign a decree affirming it with costs to the appellee and remand the cause for further proceedings.

Decree affirmed, and cause remandeI.