31 Ind. App. 504 | Ind. Ct. App. | 1903
This action was to foreclose a mortgage given by George W. Noah, then unmarried, to the German-American Building Association of Indiana. The mortgage was upon a lot in the town of Jonesboro, which lot the said Noah afterward, and before the commencement of this action, conveyed to the appellant Emma Stradley.
A full and complete statement of appellee’s cause of action is, we think, necessary for the proper discussion of the question presented by this appeal. Appellee’s complaint, omitting the caption, the mortgage, and prayer for relief, was as follows: “The plaintiff, the German-American Building Association of Indiana, complains of the defendant, and says: that on the 26th day of May, 1892, George W. Noah, being a member of the plaintiff association, procured an advancement to him as a loan in the sum of $400 upon four shares of the capital stock of plaintiff, with agreement on his part that he would pay monthly
“Plaintiff further says that since the execution of said mortgage the said defendant George W. Noah conveyed said real estate to his codefendant, Emma Stradley, who is now the owner in fee simple thereof; that said defendants and each of them have failed to pay the instalments provided for in said bond and mortgage, so that there were on January 28, 1899, twelve months’ delinquent interest and premium due on said mortgage indebtedness, and twelve months’ fines were then due thereon, and that the same have continued delinquent to this time, together with all the months since elapsed, and that there is duo plaintiff, on account of such indebtedness, the sum of $166.47, to which should be added accruing premium, interest, and fines, that have accrued and shall accrue since January 28, 1899, up to the. time of any decree entered herein, and, also, premium paid by plaintiff for insurance on improvements to protect its lien, which premium defendants failed to pay, and to which should also be added ten per cent, attorney’s fees.” Exhibit A. “Know all men by these presents that George W. Noah, unmarried, of Eulton county, of the state of Illinois, is held and firmly bound unto the German-American Building Association of Indiana, in the sum of $400, which well and truly to be) paid he binds himself, his heirs, executors, and adminis
Appellant Emma Stradley answered in six paragraphs, as follows: (1) Payment; (2) set-off in the amount paid by appellant as a borrowing stockholder, which, with the added earnings, amounted to $642.80; (3) set-off in the amount of $642.80, being seventy-two consecutive monthly payments of $1.20 each, with the earnings thereof added —the earnings being alleged to be $124.40; (4) that the
The trial, court sustained appellee’s demurrer to the second, third, and sixth paragraphs of answer. The trial resulted in a finding and judgment for appellee in the sum of $248.60, and foreclosing the mortgage.
It is assigned as error that the trial court erred in striking out interrogatories forty-three to ninety-one, both inclusive, and interrogatories one hundred and three and one hundred and six. The error, if any, arising out of this action of the trial court in this regard is not presented by the assignment of error. The question must be presented by motion for a new trial. It does not appear as one of the specifications in appellants’ motion for a new trial. It was not error to strike out the exhibits filed with appellants’ fifth paragraph of answer. These exhibits consisted of printed statements of the condition of appellee com-pany, of the plan or method of doing business, and of the profit coming to both borrowing and non-borrowing stockholders. The fifth paragraph of answer was held sufficient without these exhibits. „Its allegations covered all the material facts stated in the exhibits, and upon the trial they were admitted in evidence thereunder. The foundation of the answer was not the exhibits, and, as evidence, they performed for appellants every legal service to which they were entitled. ISTor did the trial court commit reversible error in sustaining appellee’s demurrer to the second, third, and sixth paragraphs of answer. Any evidence admissible
The questions raised under appellants’ motion for a new trial hardly admit of separate discussion. It is the well settled law in this State that where a certificate of stock of a building and loan association provides that the payments thereon shall not exceed a certain number specified therein, the stockholder can not be required to pay more than the specified number. The payment of the number of payments named in the certificate of stock may not mature it and make it worth its face value — which result the association does not guarantee — but the stock only matures when the dues paid and earnings apportioned to it amount to the face value thereof. Wayne, etc., Assn. v. Skelton, 27 Ind. App. 624; Union Mut., etc., Assn. v. Aichele, 28 Ind. App. 69. That when the stockholder becomes a borrowing member, and such agreement as to the number of payments to be made is not carried into the bond and mortgage securing the loan, but instead thereof it is provided in the bond and mortgage that the borrower shall continue to pay the dues on such stock until it matures according to the by-laws of such association, then in such case the limitation placed on the number of payments is of no avail to the borrowing
The case at bar is not within the reasoning or rule announced in Lime City, etc., Assn. v. Wagner, 122 Ind. 78, 17 Am. St. 342, and International Bldg., etc., Assn. v. Bratton, 24 Ind. App. 654. Both the bond and mortgage required appellant to pay the dues until the stock matured. This she had not done. The trial court properly permitted the secretary of the appellee association to testify as to the value of appellants’ stock at the time of the trial, and we think rendered a correct judgment from the evidence presented by the record.
Judgment affirmed.