Russell v. Pierce

121 Mich. 208 | Mich. | 1899

Montgomery, J.

(after stating the facts). It is settled by authority that payments of dues on stock are not payments on the mortgage debt, and do not, ipso facto, work an extinguishment of the mortgage. End. Bldg. Ass’ns, § 477; Price v. Kendall, 14 Tex. Civ. App. 26; Rogers v. Rains, 100 Ky. 295; Building & Loan Ass’n v. Price, 169 U. S. 45. There is no evidence of fraud, nor are any misrepresentations shown, such as appeared in Sawyer v. Building Ass’n, 103 Mich. 229. The contention of defendants’ counsel is that the subscription to stock and the loan were parts of one transaction, and that the contract was usurious. The contract was a Minnesota contract. It was dated at Minneapolis, was made payable at Minneapolis, and expressly stated that it was made subject to the laws of Minnesota. This clearly makes it a Minnesota contract. Bennett v. Building & Loan Ass’n, 177 Pa. St. 233 (55 Am. St. Rep. 723); 27 Am. & Eng. Enc. Law, 971, 972, and note; Id. 974. The contract is within the laws of this State authorizing building and loan associations. People’s' Building & Loan Ass’n v. Billing, 104 Mich. 186. The law of Minnesota is not proven. Some authorities hold that the presumption to be indulged, in the absence of proof, is that there is no law in the sister State against usury, while others hold that the presumption should obtain that the law of the sister State is the same as ours. 27 Am. & Eng. Enc. Law, 976. Whichever rule is followed, the defense is not made out in this case.

The decree will be reversed, and a decree entered for the complainant in the sum of $201.80, and interest from November 29, 1897, and costs of both courts.

The'other Justices concurred.