15 Del. Ch. 455 | Orphan's Court of Delaware | 1926
The contest in this matter is solely between Margaret E. Joseph and John P. Joseph, her former husband. There is no showing whatever to the effect that Mrs. Joseph ever paid from her own moneys any of the payments upon the stock subscribed for and standing in Mr. Joseph’s name. Her attorney admits that we must assume that Mr. Joseph made all the payments with his own funds. Mrs. Joseph therefore makes no pretense of having any sort of interest as equitable owner in either all or any part of the shares of stock standing in her former hus
Unless, therefore, Mrs. Joseph can support her position on some other theory her contention must be rejected. Her attorney advances such theory by saying that when Mr. Joseph made payments on account of the stock he thereby as a matter of law made payments on account of the mortgages for which the stock was held as collateral, and if so the result follows that the mortgage debts have been reduced pro tanto. To this it is first to be said that under the law of this State payments on stock by a mortgagor-bar-rower from a building and loan association are not ipso facto payments on the mortgage debt pro tanto, even if the stock is assigned as collateral. Trustees of Mutual Loan Asso. v. Tyre, 3 Boyce (26 Del.) 88, 81 A. 48. Under this rule, the payments by Mr. Joseph upon his stock were not payments upon the mortgage. But the attorney for Mrs. Joseph contends that the rule laid down in the case from 3 Boyce (26 Del.) 88, 81 A. 48, is not applicable here, because in that case the building and loan association was insolvent, whereas here it is not.
How the applicability of the rule which is confessedly applied to a case where the building and loan association is insolvent is rendered less so if the association is solvent, is not clear to me and the reason for such alleged distinction was not pointed out at the argument. Indeed, it would seem that if the rule is applied in case of insolvency on the part of the building and loan association, it ought with stronger reason be applied where solvency exists, because in the latter case the question is not complicated by rival equities as
Under the decisions of this State, therefore, it appears that the outstanding mortgages are entitled to be regarded as due and payable in their full amount with interest. This is the result of the matter when considered solely as a controversy between the building and loan association and Mr. Joseph. But when the controversy is regarded as one between Mr. Joseph and his former wife, the equity of the situation is entirely in favor of him, for there can be no right or justice in appropriating payments made by him upon shares of stock, acquired in his name and which he assigned as collateral to the joint indebtedness, to a reduction of the joint obligation. That would be making him bear more than his equal burden of the debt.
Let an order be prepared accordingly.