37 Ind. App. 146 | Ind. Ct. App. | 1904
Suit by appellant to foreclose a mortgage given to secure a bond executed by appellee Gilmore. The
Appellee Gilmore in his fourth paragraph of answer admits the issuance to him of the five shares of stock, and that afterwards he borrowed the sum of $500 thereon, executing the bond described in the complaint, and also executing to the appellant the mortgage described and set out in the complaint, and that the by-laws of appellant are referred to and made a part of the certificate of stock issued to him, and in both the bond and mortgage the by-laws are referred to, and in the bond and mortgage it is provided that payments shall be made until the shares mature as provided by the by-laws of appellant. lie alleges that at the time of and before the issuance of the stock he was desirous of making a loan of $500, and at that time he had no knowledge of the rules governing loan associations or the rights of persons becoming members thereof, and that for the purpose of inducing him to become a member, and to execute the bond and mortgage sued on, appellant, its offi
The demurrer to this fourth paragraph of answer was overruled, and this ruling is assigned as error. The demurrer to this answer should have been sustained. Appellee Gilmore may have been induced to enter into the transaction by the representations made, but when he signed the bond and mortgage he agreed to comply with the stipulations therein contained. The bond and mortgage, and the by-laws made a part of each, state very plainly the manner in which the debt may be discharged. He obligated himself in the bond and mortgage to continue to make certain specified monthly payments “until such shares mature as provided in the by-laws,” and the by-laws provide that the stock shall mature as soon as the total loan fund portion of the monthly instalments, with accumulated profits, shall equal $100 per share. As a stockholder, he was to pay for sixty months only, but would receive the par value of his stock, as the certificate of stock says, whenever the monthly payments and an equitable apportionment of the profits should amount to the par value. This might have been some time after he had ceased making the monthly payments. As a borrower, he was not to pay for sixty months only, and have his debt canceled whenever the monthly payments and an equitable apportionment of the profits should amount to the par value; but he agreed, by the bond and mortgage, to continue to make these monthly payments until the shares should mature, and the shares would not mature, the by-laws say, until the total loan-fund portion
Counsel for appellee Gilmore cite the case of Hartman v. International Bldg., etc., Assn. (1901), 28 Ind. App. 65, and state in their brief that upon the authority of that case the demurrer to this paragraph of answer was overruled.
The demurrer to the fourth paragraph of answer should have been sustained. Judgment reversed.