18 Wash. 686 | Wash. | 1898
The opinion of the court was delivered by
—This action was brought by the respondent to foreclose a mortgage given to secure a certain promissory note executed by the defendants to the Washington Rational Building, Loan and Investment Association, of Seattle. The note has been assigned to the respondent, and respondent now claims to be the owner and holder thereof by virtue of the assignment. After the execution of this note and mortgage, but prior to the assignment thereof, the defendant Hamilton made an assignment for the benefit of creditors; and the appellant is now, and was at all times since the commencement of this action, the duly appointed,
There aré but two questions submitted for the consideration of this court: First, that the plaintiff has no legal capacity to sue, and second, that the complaint does not state facts sufficient to constitute a cause of action against this defendant. On the first proposition it is contended that the complaint shows that the note and mortgage sued upon was given by a stockholder in the building and loan association, organized under the laws of the state of Washington, to the association, and that such a claim under our statute is not only non-negotiable, but also non-assignable. The contention is that, under the provision of chapter 4, of the Laws of 1889-90, p. 56 (Bal. Code, § 4395 et seq.), relating to building, loan and savings associations, the mortgages belonging to such company shall be deposited and kept with the state Auditor, or with the duly chartered trust company of the state, approved by the state auditor,
“ Every building and loan association heretofore or hereafter incorporated under the laws of this state, and governed by this act, shall deposit and keep with the state auditor, or with a duly chartered trust company of this state, approved by the state auditor, in trust for all its members and creditors, all mortgage or other securities received by it in the usual course of business. When deposited with a trust company, such company shall certify to the state auditor the possession of such securities, and the same shall not be surrendered without the authority or sanction of the state auditor.”
This seems to be a mandatory provision of the statute, and the requirement is the deposit of all mortgage or' other securities in trust for all its members, blow, a trust is certainly established here for the members of the association, and that trust can not be disposed of except in accordance with the provision of the statute, and if no provision is made it is plain that the security can not be sold. The statute makes a further provision in substance, that where the association does not have mortgage or other securities to the amount of $25,000 it shall deposit with the state auditor additional securities, to make, with the securities so owned and deposited, equal in value to said sum of $25,000. These securities are to consist of bonds or treasury notes of the United States or national bank stocks, or bonds of this
Soott, O. J., and Andebs, Gobdon and Reavis, JJ., , concur.