Beckley v. U. S. Savings & Loan Co. , 147 Ala. 195 ( 1906 )

ANDEBSON, J.

This case has been here before, and is reported in 137 Ala. 119, 33 South. 934, 62 L. R. A. 33, 97 Am. St. Rep. 19. This court then held that this was a, Minnesota contract and governed by the laws of that State, and we see no reason to depart from the rule then laid down. Indeed, this case seems to have been tried upon that theory, and the appellant has attempted by the amendments and proof to show a violation or noncompliance by the respondent with the laws of said state.

The appellant insists that the contract is void, because complainant ivas not a member of the corporation at the time the mortgage was executed. This contention is unsupported by the proof. On the other hand, the proof shows that he applied for membership, and received as a member 16 shares of stock in the company, before the mortgage was executed.- It would therefore seem that he was- a member, and after borrowing the money and executing the mortgage he occupied a dual position. He was a member and a borrower, and each position was separate and distinct from the other. — Hayes v. Southern Home Building & Loan Association, 124 Ala. 663, 26 South, 527, 82 Am. St. Rep. 216; Southern Building & Loan Association v. Anniston Loan & Trust Co., 101 Ala. 582, 15 South. 123, 29 L. R. A. 120, 16 Am. St. Rep. 138.

It is also contended that this loan is usurious, because the premium should be added to and included as a part of the interest. The statute set out in the amendment expressly declares that premiums shall not render the contract usurious. Section 2794, Gen. St. Minn. 1894, as set out in the record (page 61 of the transcript.) It did not render the mortgage invalid or usurious because the money was not put up to the highest bidder. This point has been decided adverse to the appellant in the case of Zenith Association v. Heimbach, (Minn. 79 N. W. 609, which opinion was introduced, in evidence and appears on page 155 of the transcript. The opinion of the court of Minnesota, was properly admitted in evidence to show the construction of the statutes governing the case at bar. — Inge v. Murphy, 10 Ala. 885; Cubbedge v. Napier, 62 Ala. 518; Walker v. Forbes, 31 Ala. 9.

The decree of the city court is affirmed.

Weakley, C. J., and Tyson and Simpson, JJ., concur.