Johnson v. Southern Building & Loan Ass'n

| Ala. | Nov 15, 1898

Rehearing

In response to the application for rehearing.

SHARPE, J.

— The original contract here involved being between Tarwater and the defendant association and the complainant’s relation to it being only such as arises from Tarwater’s transfer to him of his stock and. of the mortgaged property, he is not in a situation to raise the question as to whether the contract was usurious. The right to complain of usury is personal to the borrower and his personal representatives and to his heir when the debt may diminish the inheritance.—Eslava v. New York Nat’l B. & L. Ass’n, at present term.

The letter of Cruse the agent of the association to Smith referred to in the bill as an agreement on the part of the association, purports merely to give information as to the condition of complainant’s stock and the debt held against Tarwater. It bears no semblance of a contract between the complainant and the defendant, lacking both promise and consideration. No rights are conferred and no obligations are created by it. If it be true that the association has resolved to collect dues on account of stock for only seventy-two months, such resolution did not change existing contracts. Nor does it appear how the plan of discontinuing stock payments if carried out would lessen the amount to be paid on the mortgage since as stated by the letter in question that the interest and premium payments are to continue until the maturity of the stock. That event discharges the mortgage and determines the amount to be paid. It occurs by the terms of the mortgage when “the amount in the loan fund to the credit of his shares from monthly payments and profits equals fifty dollars for each share on which the loan is made.”

The fund which is to mature the shares must be fed, and if not supplied from payments on stock it must be from other charges. Therefore, to have stopped collections on stock would only have prolonged the time for maturing the stock and extinguishing the mortgage. The right of redemption does not exist until the law day of the mortgage has arrived or until the option given the mortgagee to foreclose it for non-compliance' with its terms is being exercised.-Sheldon v. Birmingham B. & L. Ass’n, 121 Ala. 278" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/sheldon-v-birmingham-building--loan-assn-6517954?utm_source=webapp" opinion_id="6517954">121 Ala. 278. It was upon this principle that the decree appealed from was affirmed. The rehearing will be denied.

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Lead Opinion

SHARPE, J.

— The principles which must control this case were considered and settled adversely to the appellant in the case of Sheldon v. The Birmingham Building & Loan Association, decided by this court at its present term and upon the authority of that case the decree appealed from in this case will be affirmed at appellant’s cost.