119 Ala. 175 | Ala. | 1898
The Casa Grande Livery Stable Company, the complainant in this bill, is a private corporation organized under the general laws of Alabama for
The defendant, the Southern Building & Loan Association, is a private corporation organized under the general laAvs of Alabama providing for the organization of such institutions, for the purpose of carrying on the business indicated by its name.
The bill alleges that in March, 1888, Skillman, acting in the character of president of the Stable Company, and for and in the name of the company, applied to said B. & L. Association for a loan of $3,500, and in order to. procure it avus required to, and did subscribe for seventy shares of the association’s capital stock in the name of the Stable Company, and to execute a bond and a mortgage on said stable property, in the name' of the company, to secure the loan and interest thereon at the rate of five per cent, per annum. Without setting them out, in detail, the bill alleges, as a further part of the procurement and making of the loan, certain exactions on the part of the lender of the borroAver, in the form of premiums on stock, etc., put into the writings between the parties, which, under the facts and intents charged in the bill, really constituted interest agreed to be paid for the loan, in addition to the nominal exaction of five per cent.; the aggregate of which exactions and agreements to pay, together Avith the nominal interest of five per cent., exceeded eight per cent, per annum of the loan, and it is alleged, in substance, that the forms adopted were designed as covers of usury.
It is further alleged that said Skillman acted throughout without the authority or knowledge of the directors or stockholders of the Stable Company, no meeting of either body having been called or held for that, or any other purpose, and that he acted under the mistaken belief that, as president of the company, he was authorized in the premises. Skillman received the money borrowed and applied it to such uses of the company as he suav proper. The company has returned to the association all the said sum of money received from it, with eight per cent, interest thereon, except $759, which it offered to return, but the association refused to accept
The relief specially prayed is that the subscription to said shares of stock, and the execution of the bond and mortgage be “each and all decreed usurious, ultra vires and void, and that the said stock and bond be cancelled and that a cancellation of the said mortgage be decreed; that an account be taken and the amount complainant should equitably restore'to defendant be adjudged; that the defendant, its agents and attorneys be restrained and enjoined from proceeding with or making the said pending and threatened foreclosure sale” — the bill alleging certain pending proceedings for foreclosure of the mortgage by sale under the power. General relief is also prayed for.
The chancellor overruled the demurrers to the bill which raised only questions of multifariousness and repugnanccy.
The theory of the demurrer, in one aspect, is that the cancellation of the stock subscription as ultra vires and as an unauthorized and void act of the president, and the cancellation of the bond and mortgage given for the loan as also ultra vires and unauthorized, are distinct and independent equities incapable of joinder in the bill without offending the rule against multifariousness; and in another aspect, that the bill, in one phase, treats the bond and mortgage as ultra vires and Amid and seeks their cancellation, etc., and in another as valid obligations infected merely with usury, against which relief is sought, and seeks redemption, thus presenting inconsistent demands for- relief.
In the first place, the averments of the bill, in detail, sIioav that the entire dealing brought to view was a single transaction, all being for the effectuation of said loan at a greater than the lawful rate of interest. The stock was to be forfeited if the premiums and interest should not be promptly paid; the mortgage, were it valid, secured the payment of the monthly premiums as well the loan and five per cent, interest, and Avas forfeit-able upon default in the payment thereof any month, and the supposed stock itself was security for the loan. If the stock should ever mature it Avas to be cancelled,
With only the power to borrow money which was conferred upon the Stable Company by-the general statute under which it was organized (Code, 1886, §1164, subd. 7), the bond and mortgage, in the present case, were clearly ultra vires and void. This statute expressly inhibits the. borrowing of money by..a corporation, so. organized, at a greater rate of interest than eight per cent, payable semi-annually. The provision is not one of usury governed’ by the general usury law which forfeits the interest merely,.but it is one going to. corporate power to make the contract. If the present legal rate of interest in the State should be, by legislature, increased, this corporation .would still. remain as powerless to borrow money at a greater rate than eight per cent, payable semi-annually, as it is now. Again, the borrowing of money by the corporation is unauthorized unless by consent of the holders of the larger part in value of the capital stock expressed in the manner prescribed in said section of the Code: This provision being especially for the benefit of the stockholders, it may be that a loan obtained'without this consent, if otherwise within corporate power, would be capable of ratification by the stockholders, (Nelson v. Hubbard, 96 Ala. 238; Barrett & Co. v. Pollak, 108. Ala. 390), but the bill shows no such ratification in this case. , ;
So, it must be taken — indeed, it seems not to be disputed in the argument — that the bond and mortgage were and are void.
Is the bill repugnant, as the demurrers-insist, because the securities are void and their cancellation sought,
We have a line of decisions in cancellation suits, brought by individual mortgage borrowers, where cancellation of the mortgage was sought on account of total invalidity resulting from the violation of, or non-compliance with, some constitutional or statutory provision, in its execution, wherein we held that although the note and mortgage be void by reason of the Constitution or statute, yet if the complainant, seeking, in a court of chancery, to cancel them on that account, actually received money or thing of value from the mortgagee, in reliance by him upon the void securities, he would not be accorded relief, unless he offered in his bill to do equity by restoring to the mortgagee that which he had so received. We simply applied to him the old maxim that “he who seeks equity must do equity.” — American Freehold Land Mortgage Co. v. Sewell, 92 Ala. 163; New England Mortgage Security Co. v. Powell, 97 Ala. 483; Grider v. American Freehold Land Mortgage Co., 99 Ala. 281.
We do not no w decide whether or not that principle is applicable to a case like the present, where the contract, if treated as one made by a corporation is void for the Avant of laAvful power in the corporation (who is suing) to make it, or if made by the president without authority, as shown by this bill, is void for the want of his authority, as well as the want of corporate power; but it is evident from the frame of the bill in this case that what is said in reference to a restoration of the money received and applied by the president of the complainant, and the offers to do equity, in that respect were to bring the case within the saving of the principle, if the court should hold it applicable. We think the language of the bill, on this subject, clearly shows this. It nowhere commits the complainant to any recognition of the existence of a debt, but repudiates such existence throughout; and in speaking of moneys returned to defendant they are characterized as returns of moneys received, and not as payments of a debt; and the prayer is that the sum necessary to be “restored,” (not paid), be ascertained. The bill is clear, positive and emphatic
The bill is not multifarious or repugnant, and the demurrers were properly overruled.
Affirmed.
