Goodman v. Durant Building & Loan Ass'n

71 Miss. 310 | Miss. | 1893

Campbell, C. J.,

delivered the opinion of the court.

We reject the notion that because no statute.of this state expressly authorizes the creation of building and loan associations, therefore, none could be formed under the general law for incorporations. Under the general law, any corporation not prohibited could he formed with any customary and appropriate powers not inconsistent with law. The vital principle of such associations, as known to us, is compounding monthly receipts, whereby to produce astounding results, for the mutual benefit of all concerned, and what is called a fine (merely an agreed sum as liquidated damages) is imposed for every default in payment, as a spur to prompt payment, so as not to derange the pi’oeess of compounding, which must fail if there is want of payment as agreed, and failure of which would cause failure of the scheme. We see nothing wrong in members of full age and compos mentis mutually binding themselves to so beautiful a scheme for reciprocal advantage, and being held to the performance of what they have agreed.

Interest on premiums is not allowable. Sullivan v. Jackson B. & L. Association, 70 Miss., 94. The code of 1892 did not have the effect to free the contract from the taint of usury, if full sanction he given to the doctrine contended for, because of § 4, which pi-eserves, unaffected by changes made .by the code, any former cause of action or defense. Section 5 has reference only to crimes and forfeitures and penalties connected with them or growing out of some offense.

The trustee had the right to name the place of sale. Section 2484 of the code of 1892 does not hinder the grantor from authorizing the donee of a power in a mortgage or deed of trust to designate the time, place and terms of sale. The statute comes in when the instrument is silent on the subject. Empowei’ing one to name time, place and terms is just as if the time, place and terms were inserted in the instrument by the maker, for, done by authority conferred by him, it is as if done by himself.

The transaction should be purged of all illegal charges, and the rights of parties adjusted after this on the basis of their stipulations mutually binding, and sale may be allowed according to the power conferred by the deed of trust. •

jReversed and remanded.

Note. — The order remanding this cause does not specify the manner in which the accounting between complainant and the association is to be had, the entry being, in general terms, that the decree is reversed and the cause remanded, to be proceeded with in accordance with the opinion. Rep.