55 S.C. 105 | S.C. | 1899
Lead Opinion
The opinion of the Court was delivered by
In July, 1895, at the suit of William H. Strauss, the Carolina Building and Loan Association, located at Wilmington, in the State of North Carolina, and doing business in that State, and in the States of South Carolina and Georgia, in the Superior Court of New Hanover County, was declared insolvent, and its affairs ordered to’ be wound up. For this purpose the present plaintiffs were duly appointed, by said Court, as the receivers of said building and loan association, and they have accepted, qualified, and entered upon the discharge of the duties of such office of receivers. The defendant, Henry W. Finlayson, in the year 1891 became a stockholder by having issued to- him thirty shares of loan stock, and upon these shares as abasis; he borrowed $3,000 of such building and loan association, and to secure such loan he assigned his thirty shares of the said stock to said building and loan association, and also> executed a mortgage on- real property located in Cheraw, in the State of South Carolina, to said building and loan association, as an additional security for said loan. One Lawrence FI. Fesperman also became the holder of seven shares in said building and loan association, in the year 1891, and in the year 1892, he borrowed $700, executing an assignment of his stock and a mortgage of a house and lot in Che-raw, S. C., to the building and loan association, but on the 4th February, 1893, the aforesaid Finlayson purchased from the said Fesperman the land SO' mortgaged, and his seven shares of said stock, together with all his rights and interests therein and thereto, and assumed the obligations of the said Fesperman, as set out in the act incorporating the building and loan association, and in its by-laws. Finlayson con
As to the fourth exception, we have already held that the Courts of North Carolina could by their judgment conclude Finlayson as a corporator, so far as the assets of the insolvent corporation are concerned; could also wind up its affairs, so as to conclude him, but we still hold that outside of the jurisdiction of the Courts of the State of North Carolina, in order to reach Finlayson or his property, new suits must be brought in this jurisdiction.
As to the fifth exception, we hold that the Circuit Judge was in error in not holding directly that the liability of Finlayson must be fixed as arising under a contract made by him to be enforced in the State of North Carolina.
As to the seventh exception. Under the views we have hereinbefore expressed, it will not be. necessary to pass upon this exception.
As to the eighth exception, we have already announced our conclusion that the contracts of Finlayson and his assignee, Fesperman,- were usurious both under the laws of the State of North Carolina, as construed by the Supreme Court
It follows that, in my opinion, the decree of his Honor, Judge Gary, should be modified, and our judgment should read that: “It is the judgment of this Court, that the judgment of the Circuit Court be modified in these particulars herein required, and that the action be remanded to the Circuit Court, so .that the special master, Mr. Shipp, ma)*' pass upon the issues referred to him, as modified by the judgment of this Court.” But the majority of the Court seem to entertain views at variance with those herein expressed by me.
Therefore, it is the judgment of this Court, that the judgment of the Circuit Court be affirmed, but I dissent from such judgment.
Dissenting Opinion
For these reasons 1 am unable to concur with Mr. Justice Pope in the views which he has taken of the several points hereinabove considered, and, on the contrary, I think the judgment of the Circuit Court should be affirmed.