Iowa Savings & Loan Ass'n v. Curtis , 107 Iowa 504 ( 1899 )

Granger, J.

1 2 I. The case of Association v. Heidt, 107 Iowa, 297, disposes of a part of the questions presented in this appeal, such as usury and the effect of the curative act passed by the Twenty-seventh General Assembly. See Acts Twenty-seventh General Assembly, chapter 48. That case holds that what might otherwise be usury is cured by the act referred to. It is pleaded by defendant that the plaintiff, when the loan was made, was not a “mutual building association,” so as to come within the provisions of the law on that subject. It does appear that at its organization, in August, 1889, the association was organized under “title nine of the Code of Iowa,” such a statement appearing in the articles of incorporation. Chapter 6 of that title is “Of Mutual Building and Loan Associations”; but it is urged that the provisions of that chapter were not complied with at such organization, and .were not until 1892, after the loan was made. Defendant was a member. of the association for some months before the loan was made, and has so continued to be. In 1892, after the loan was made, the articles of incorporation were amended, in pursuance of their terms, so that the organization has been since that time under the provisions of that law. This change' was made while defendant was a member of the association, and as her loan was made under the provisions of its articles of incorporation and by-laws, that were a part of her contract, the right to make changes in accord therewith is included in the contract. After the change was made, she continued to recognize the contract as valid by payments up to May, 1895. It is not to be said that there was not during that time a contract between her and the plaintiff. Its legal effect prior to March 8, 1898, might present another and a doubtful question. The present Code (section 1898) fully authorizes such a contract as the one in question, since its adoption October 1, 1897. The curative act of March 8, 1898, amends section 1898 of the Code so as to make it apply to all contracts between savings and loan associations and their members, made and entered into prior to the talcing effect of the Code. This, under our holding in Association v. Heidt, supra, would make the contract valid.

We understand the court below to have found the mortgage debt paid, because the finding of usury justified the application of all the payments in extinguishment of the principal sum, and, as the aggregate of payments was more, that the -six hundred dollars Avas canceled. It is on the same theory that it is now urged in this court that the debt is more than paid, and that there is an excess to be applied to the maturing of the other four shares of stock. As we hold, following Association v. Heidt, that there is no usury, the basis for appellee’s claim fails, both as to the mortgage debt and for the maturing of the other shares.

3 It appearing that the plaintiff is a corporation under the provisions of chapter 13, title 9, of the Code, being that “Of Building and Loan Associations,” and that the 'contract is not usurious, appellee’s claim, both as to her mortgage debt and her counterclaim, must fail. In view of these, findings, the forfeiture under the contract because of nonpayments, so that the claim is now collectible, seems clear. Appellant, in argument, makes” the amount of its recovery somewhat less than in the petition, which appears to be correct; and a judgment of foreclosure should be entered for two hundred and sixty-eight dollars and ninety cents, with interest at eight per cent, since September 1, 1895, with attorney’s fees and costs, for the entry of which judgment the cause is remanded. Because of our conclusion being based in part upon an act of the legislature passed since the cause was appealed, the costs in both courts should be paid by the parties, each one-half.— Keversed.