57 W. Va. 551 | W. Va. | 1905
Annie B. Thompson subscribed twenty shares in the National Mutual Building and Loan Association of New York. On the 12th of January, 1894, she borrowed $2,000, the par value of said shares, and executed to the said association her bond in the penal sum of $4,000, and together with A. M. Thompson, her husband, executed a deed of trust bearing the same date to George J. Peet, trustee, on lots 29 and 30 in block 22, together with the improvements thereon, in Central City, Cabell county, to secure said loan according to the terms and provisions of the said bond and deed of trust and the by-laws of said association, and also assigned to said association her twenty shares of stock. Said Annie B. Thompson had an insurance policy of $2,000 on the house on said property, in the Norwich Union Fire Insurance Society, which policy contained a provision making the loss, if any,
Plaintiff exhibited with her bill the deed of trust executed by herself and her husband to secure the loan, also her receipt-book showing the payments made by her on dues, premiums and interest, also a paper writing addressed to the defendant association purporting to be an offer to pay said association $1,120 in full of its claim and a demand to it to surrender the policy of insurance; which paper was dated March 14, 1898. ( On the 23d of March, 1898, the court made an order of injunction according to the prayer of the bill, restraining the payment by the fire insurance society to the said association of said $2,000, or any part of it, and appointed a special receiver to make settlement with the fire insurance society for the loss under the policy and to take charge of the $2,000 and of the said policy and directing the association to turn over said policy to the receiver, and the
The defendants, the National Mutual Building and Loan Association and George J. Peet, tendered their joint and separate demurrer to plaintiff’s bill, which was overruled. They then tendered their joint and separate answer which was ordered to be filed. To which plaintiff replied generally. With the answer were exhibited the charter and by-laws of the defendant, and the Acts of the Legislature of New York under which it was organized, the bond' for $4,000 executed to it by the plaintiff and her husband, and also the assignment to ■defendant of her twenty shares of stock. The answer denied all the material allegations of the bill alleging usury in the contract. Upon the filing of the answer the court made an order referring the cause to one of its commissioners to state and report account, showing amount due by the plaintiff, Annie B. Thompson, to the defendant association under the trust deed .and any other matters which any of the parties to the cause might require of the commissioner, in writing. Depositions were taken on behalf of the association and filed in the cause, from which it appears that after allowing credit to the plaintiff for the withdrawal value of her stock, as of September 1, 1898, $542.20, there was a balance due on said loan of $2,015.80, as of that date; but if the stock should be continued and held by the said plaintiff the amount due on the loan as of said date was $2,548. The commissioner made his report upon the theory that plaintiff, is entitled to the net profits on her stock, being 1-1401 part of the net profits of the association during the time her stock was running, leaving .a balance due from plaintiff to the said association of $1,-267.60; the said net profits being $302.40. He then made another statement giving plaintiff credit also for $210.22, being the 1-1401 part of the net reserve fund, which showed a balance due from plaintiff to the association of $1,057.38. He then made, at the instance of the defendant association, a statement showing the amount due as claimed by it, and supported by the depositions, made out according to the contract contained in the bond, deed of trust and by-laws, giving the plaintiff credit with the withdrawal value of the twenty shares of stock, showing a balance due 'as of September, 1, 1898, of $2,015.60, which sum should bear interest
The defendant association filed five several exceptions to-the commissioner’s report, excepting to his findings on the several bases stated. The fourth exception being that the commissioner found and reported that there was only the sum of $1,267.60 due upon said loan on the 8th of March, 1899, when the evidence showed that there was due on the first dajr of September 1898, the sum of $2,548, and a redemption fee of $10, making a total necessary to repay the loan of $2,558, and that the value of the shares that might be credited thereon was $542.20, leaving a balance due on that date of $2,015.80,, which should bear interest from the first day of September to the 8th day of March, amounting altogether to $2,076.50, which the commissioner did find tobe due thereon according to the evidence and contention of the defendant association, and it further excepted “Because the commissioner makes an alternate finding basing it, as he saj^s, upon the theory of the plaintiff’s attorneys in which he makes all the errors and wrongful finding hereinbefore excepted to by the defendant association and in addition thereto finds and reports that the plaintiff is entitled to share in the net total earning of the association between the time she became a stockholder and. the time of the loss by fire as. aforesaid, and also in the contingent reserve fund when in fact and according to the evidence she is not entitled to have credited on her shares any of the reserve fund as hereinbe-fore set forth.” Plaintiff also filed exceptions numbers one and two. Number one, because the commissioner did not find that plaintiff was entitled to the difference between $2,000, which is amount of the insurance money in the hands, of the receiver, and $334.50 which she claimed she still owed on the loan, or $1,665.50 of said insurance money to be decreed to her. Plaintiff’s second exception was that if the court should not hold that her first exception was well taken that the commissioner should have treated the whole transaction as a loan o^ $2,000; that the association was shown not to have complied with the laws of the State of West Virginia, in making said loan and was not entitled to receive any pre.-
Loan. $2,000.00
Interest to the date of the appointment of the
receiver at six per cent. 505.00 — $2,505.00 Ob.
With interest on average payments of premium, interest and dues, &Int. on same, $1,376. Fine
$6.00, total $1,382 & Int. $175.00. 1,557.00
Balance due the association. $ 948.00
Deducting the same from the $2,000.00 in the hands of the receiver leaves $948.00 due the association, and she prays that in case the court should be of the opinion that she is not entitled to share in the reserve fund and earnings of the said association, that then she should be settled with as set out in the second exception and she be allowed to discharge her loan by the payment of the said sum of $948.00 and the report be corrected. A. B. Thompson, by Simms & Enslow, Attorneys.”
The cause was brought on to be heard on the 16th day of July, 1901, “And the court having maturely considered the question raised in the said cause, is of the opinion that the contract between The National Mutual Building & Loan Association and the plaintiff, Annie B. Thompson, is governed by the laws of the State of West Virginia, and that as the said defendant had not complied with -the requirements of the statute in West Virginia governing loans made by Building and Loan Associations it is not entitled to have the same treated as a Building and Loan Association loan, but only as a straight loan of $2,000 and was only entitled to be paid its money with six per cent, interest, and that all payments made by the said plaintiff, whether of dues, premium or interest or fines, be credited upon the said loan, and that the said plaintiff should not share in the reserve fund or profits of said association, and that the said contract was terminated and the loan became payable at the time of the payment of the insurance money in this case into the hands of the
The only real question to be decided in this cause is that
The exceptions one, two, three and five of the defendant association to the report of the commissioner should have been sustained and also exception four, in so far as the exception to the amount found by the report in favor of the association tobe $1,267.60 on the 8th day of March, 1899, should be sustained. As to the residue of said exceptions claiming that “The evidence shows that there was due thereon, on the first day of September, 1898, the sum of $2,548 and redemption fee of $10; making a total necessary to repay the-loan of $2,558, and that the value of the shares that may be credited thereon was $542.20, leaving a balance due on that date of $2,015.80 which bears interest from the first day of September to the 8th day of March, amounting altogether to $2,076.60, which said last sum, however, the commissioner does not find to be due thereon according to the evidence and contention of defendant association;” the same should be, with the cause, referred back to a commissioner to ascertain from the evidence in the cause the actual amount of 'fines properly assessable and not paid from January, 1894, to September 1, 1898, and interest, premium and dues not paid by the plaintiff up to the same date, which several amounts to be added to the principal of the loan to be reduced by the sum of $542.20, the withdrawal value of the shares of stock, will be the true amount of the decree to be rendered in favor of the defendant association, and the exceptions of plaintiff to the commissioner’s report should have been overruled.
The decree of the circuit court of Cabell county is therefore set aside, reversed and annulled and the cause remanded to said court with directions to enter a decree ascertaining and fixing the amount due the defendant association according to the terms of the contract of loan as a Building and
Reversed.