Haspel v. Moffitt

32 Pa. Super. 344 | Pa. Super. Ct. | 1907

Opinion by

Henderson, J.,

The mortgagor’s obligation was to pay to the association $800 in one year thereafter,' together with all fines imposed by the constitution and by-laws and a monthly premium of fifty cents, as well as the sum of $4.00 for the monthly contribution on four shares of the capital stock of the association owned by the mortgagor. The defense to the payment demanded is that article 9 of the by-laws appropriates the payments on stock to the principal of the mortgage debt and that the payments set forth in the affidavit of defense were so applied. The appellant contends that the case is within the ruling in York Trust, etc., Co. v. Gallatin, 186 Pa. 150, and the cases there cited which hold that by agreement of the parties there may be an application of the payments on stock to the extinguishment of the debt. All of the cases relied upon place the borrower’s right to appropriate stock payments to the mortgage debt on the agreement of the parties that such application be made. The affidavit of defense lacks an averment of this essential condition. It is not alleged that the mortgagor gave notice that the stock payments were to be applied on the principal of the loan and that the mortgagee assented thereto, or that there was an assignment of the mortgagor’s stock to the mortgagee with the condition that the payments to be made thereon should apply on the debt. The averment is that “ In accordance with said by-law the said defendant paid in the year 1896, $48.00 on account of the principal of said mortgage and $48.00 annually thereafter, until 1902, inclusive, and $24.00 in the year 1903, making a total payment of $360 upon the principal of the mortgage, which is so credited to said defendant upon the books of the association.” It will be seen in an examination of the bylaw referred to that no reference is there made to the application of stock payments on the mortgage debt. It provides for the payment of interest monthly at the rate of one-half per cent on the amount loaned and that the interest shall be annually reduced by deducting or allowing the interest on the amount of contributions paid by the purchaser during the year. It would be an extreme interpretation of this part of the by-law to give it application to payments on the principal of the debt. The reason for the adoption of- the provision is not clear. It may have been considered equitable that interest on the debt should be reduced, inasmuch as the payments on the stock would be invested from time to time by the association and would produce an amount of interest equivalent to the reduction. Whatever may have been the motive the by-law cannot be made to operate upon the principal of the debt. The averment in the affidavit that the payments were made by the mortgagor to apply on the principal in accordance with the by-law is the assertion of a legal conclusion which the by-law does not sustain. Whether the affidavit was intended to declare that the credits were made on the books of the association in accordance with the by-laws or that they were made to apply on the principal debt is somewhat doubtful. No statement is given of the time when the credits alleged were entered, nor by whom they were made. The association is insolvent and the authorities all hold that after the insolvency of a building association there cannot 'be an appropriation of the value of shares to a mortgage debt. The subject is fully discussed in Strohen v. Franklin Saving Fund, etc., Association, 115 Pa. 273. If an appropriation had been made by the mortgagor and the mortgagee the affidavit should have so averred. The rights of the stockholders were fixed by the insolvency of the company. Payments made on the stock could not afterward be applied to the indebtedness. The equities of other stockholders forbid this. The payment of dues is, of course, indirectly a payment ■on the loan. Such payment adds to the value of the stock, and in that way produces a fund out of which payment of the debt is to be made when a sufficient amount for that purpose has been paid in on stock contributions. But this is a very different thing from paying on the mortgage debt. There is a double obligation of the borrowing stockholder. He must pay his mortgage according to its terms and in addition pay his stock contributions, interest, etc. Payment on the mortgage does not relieve the stockholder from liability for his stock contributions, unless it is expressly so agreed when the money is borrowed or before insolvency; nor can payments on stock be applied to a loan except by such agreement.

The judgment is affirmed.