Peoples' Building & Loan Ass'n v. McElroy , 72 Miss. 434 ( 1894 )

Woods, J.,

delivered the opinion of the court.

The opinion of this court in the case of Sullivan v. Building & Loan Association, 70 Miss., 94, and our affirmance of the decree of the chancellor on the second appeal of the same case to the March term, 1894, of this court, will largely control the present controversy.

The appellees were entitled to no cancellation of what now seems to them a hard contract, and they had not, when their bill was filed, or when their cause was heard and determined in the chancery court, or now, ceased to be members of the loan association, and they were and are bound to perform their contract according to the mutual stipulations and agreements of the parties thereto.

The interest on the premium which had been collected from appellees by appellant was the money of apjiellees at the time of suing out their injunction, and which they had the unquestionable right to have paid on their account for dues, interest and fines, to the extent which appellees were then delinquent; and their right to demand payment of any balance to them directly is also unquestionable. The association was clearly wrong in refusing to pay to appellees this illegal interest collected on the premium, and in insisting upon entering it as a credit on the premium. The premium was not due; it was to be liquidated by the monthly dues, interest and fines, when the stock in the series to which appellees belonged should be liquidated by that same manner of payment. But when the period had expired for which this wrongfully collected and wrongfully detained illegal interest on the premium would, if properly applied, have kept paid up appellees’ dues, interest and fines, and appellees then and thereafter failed and refused to comply with their contract to pay dues, interest and fines, they again became delinquent, and subject to be proceeded against by the association for the enforcement of payment by resort to the security appellees had given. The injunction was properly granted when prayed, but improperly retained when ap-pellees again became delinquent in payment of dues, interest and fines.

The proper method of stating the account between the parties (and this was all the appellees were entitled to) will be briefly indicated: Appellees should have credit for all the illegal interest paid on the premium, with interest at .six per cent, on the same from date of each such payment of interest on premium; and this should be applied to payment of their monthly dues and interest until exhausted. Then they should be charged, according to their contract, with dues, interest and fines on all subsequent failures to pay, with interest, according to their contract, not including fines on fines, if they are or shall be found to be in arrears, after deducting credits for any and all payments made by them.

If, on such accounting, the borrowers shall be found to be in arrears, the injunction should be dissolved, and a sale ordered, giving appellees a reasonable time within which to comply with the terms of the decree; and if they pay, no sale will take place, of course.

Reversed on appeal and cross-appeal, and remanded for further proceedings in accordance with this opinion.

Reversed and remanded.