79 Mo. 80 | Mo. | 1883
On the 31st day of August, 1875, the plaintiff filed his application for an injunction, the immediate object of which was to restrain a trustee from foreclosing a deed of trust under which he had advertised certain real estate for sale, which had been mortgaged in said deed to the building, loan and savings association made party to this suit. The plaintiff’ alleges that there is only due $450, or less, upon the debt which the deed of trust was given to secure, and that he had tendered payment of
It is proper to state somewhat more in detail the facts out of which the points in controversy have risen. It seems that in August, 1872, one Francis N. Buckingham became a stockholder in the Kansas City Building, Loan & Savings Association, one of the defendants in this case, to the extent of ten shares, which were rated at the par value of $200 per share; that on the 13th day of August, 1872, he executed his note to the association in the sum of $2,000, for the aggregate amount of his stock, to be paid as it recites “ in monthly installments of $10, together with interest at the rate of ten per cent per annum, on the amount of said principal, on or before the 25th of each and every month, until the same is paid in accordance with article
I am unable to perceive any usury in this. Both the interest, which was legal, and the monthly dues, went into the common fund of the association in which he was to have a distributive share according to the amount of his stock, at the winding-up. When the common fund became equivalent to $200 per share of the capital stock, a distribution would take place, in which case the stock debtor would receive his ratable portion in money or the return of his notes for the loans due from him.
It seems that the affairs of the association were not prosperous, and that it became necessary to wind it up before the period contemplated for its termination. Accordingly, at a meeting of the stockholders held on the 4th day of May, 1878, it was resolved that all shares and loans on shares should be cancelled by payment of all dues, interest and fines up to the 81st day of May, 1879. In pursuance of this plan of liquidation the loan secured by the deed of trust in controversy was adjusted by the court. Only the unpaid dues on the stock, and the unpaid interest on the loan were charged against the deed of trust; to which was added the amount of cash actually received on it. No fines were included. The amount due under it was found to be $1,212.66, after allowing all payments made by the stockholder and debtor. (The deed of trust being given to secure the obligation of the maker as a stockholder as well as a debtor for borrowed money, the trustee was empowered to foreclose upon default in either relation, and there is no equity to restrain him from doing so, as long as any default remains.
But perhaps it is unnecessary to invoke this view of his act to dispose of the question. The plaintiff’ was advised by the note itself and the deed of trust, and the constitution of the association, referred to in the note, of the peculiar character of the obligation and deed of trust. He is chargeable in law with the information that the deed of trust was given to secure the payment of a series of small sums for an indefinite period of time; and that these sums related to a return of the money borrowed and payment of dues on the stock by virtue of which it was borrowed. He was informed by the 13th article of the constitution referred to in the note itself, that the board of auditors and not the secretary constituted the proper authority to ascertain and declare the value of the shares, and thereby fix the time for division of the assets and cancellation and surrender of notes and stock. In other words, he was sufficiently advised that neither the secretary nor any one else could inform him as a matter of fact how many more payments would have to be made, by way of installments, interest and monthly dues. He was sufficiently advised that any information of such a fact must necessarily be in the nature of an estimate or speculation, dependent upon the future career of the association, which no one could foretell.
There is no pretense that the secretary misinformed the plaintiff as to any fact or figure in his books or under his custody — no pretense that he misstated the receipts or payments which had been made in compliance with the