Motes v. People's Building & Loan Ass'n , 137 Ala. 369 ( 1902 )

DOWDELL, J.

The bill in this case is one by a borrowing stockholder from a building and loan association, of which he was a member, and seeks to enjoin the foreclosure proceedings by the association under the mortgage, which was given to secure the loan. The bill as amended admits that the complainant obtained the loan and received the amount evidenced by the mortgage contract, except a -small fee for recording and .abstract of title, that was deducted from the amount of the loan. And it is not denied, but that it was his duty to pay this fee. The complainant alleges in his bill that he was required by the association to expend three hundred dollars of the loan obtained, in improvements on the property which he mortgaged to- the association to secure the loan, and on this averment insists, that such expenditure was for the benefit of the association, and not for his benefit, and that to the extent of the three hundred dollars so applied in improving the property, he was the trustee of the association, and should not be charged with that amount as a loan to him. This contention is without merit. It is further complained in the amended bill, that in the negotiations for the loan, the association promised to loan one thousand dollars, but when It came to make the loan, would only loan six hundred dollars. This latter amount the complainant received, and executed his note and mortgage for, the payment of which he now seeks avoid. The bill admits the complainant’s default, but seeks to excuse it, hv saving that it was caused by respondent’s wrong. This is a bare assertion in the bill, without a single statement of fact, to show in what the wrong consisted, or how or in what way the respondent caused it. Such averment amounts to ho charge at all.

The bill as amended alleges that more than 8 per eent-um interest per annum Avas charged on the loan, yet the contract of loan set out in the bill shows on its face, that the rate of interest Avas fixed at 6 per ecntum per annum. The monthly installments AAdiich included the interest., also included the monthly dues on the complainant’s stock, which the contract required to be paid. The stock contract and loan contract are separate and distinct. The premiums and monthly dues on the stock are not to be confused Avith the interest on the loan. The bill fails to- shoAv any failure on the part of the association to comply Avith its bv-la.Avs and rules, or to shew a. Adulation of any statute, in making the loan. Upon the question of usury, the case of Internstate B. & L. Association v. Brown, 128 Ala. 462, is conclusive of this ca.se.

As to the allegations in the bill respecting representaticns made to the complaint, as to when his stock would mature, the case of Beyer v. National B. & L. Association, 131 Ala. 369, is conclusive on this question and adverse to the complainant.

After the complainant has defaulted in his contract as a stockholder and member in the association, the association. is no longer under any duty to mature his stock. As to the suggestion that the respondent, has gone out of business as a building and loan association, this furnishes no defense against the payment of the loan made to the complainant. The bill, we think, is wholly wanting in equity, and the decree of the chancellor dismissing the same, will he affirmed.

Affirmed.