Thompson v. North Carolina Building & Loan Ass'n , 120 N.C. 420 ( 1897 )

The first exception of the appellant Long is sustained, so far as it extends to fines being allowed to the creditors of the association in the settlement of their debts to the concern. This is (424) expressly so held in Strauss v. B. L. A., 117 N.C. 318, and approved in the same case, 118 N.C. 556. We cannot distinguish this case from that, although this is attempted to be done by counsel.

It is also contended that the order is not applicable, as it is left open for future adjustment. But we can see no reason for leaving open a question that this court has in direct terms decided, and afterwards approved, unless it is supposed that time will change the law. But, as it is a payment the party has made upon his debt, he is entitled as a matter of right, to have it allowed him on settlement.

The second and third exceptions of the appellant, as understood in the light of his brief, can best be considered together. They relate to the directions to the trustee and receivers selling under the mortgage of the appellant, and as to their retaining the proceeds of sale until a final settlement. We said in Strauss v. B. L. A., supra, that the receivers did not have the right to sell without an order of foreclosure. This was correct in that case, as the mortgages were made to the association. But in this case Maxwell, the trustee, is a party whose duty it was to foreclose the mortgage if default was made, and to pay the money to the association. This being so, it would seem that he might still sell under the power given to him in the mortgage. But we can see no reason why he should not pay all the proceeds of such sale over to the receivers, who are bonded officers, to be held by them until the settlement of the concern.

It is contended that the residue is the appellant's money, and there is no reason why it should not be paid to him at once. But as reasonable as this appears to be, it is not true; for the reason that it leaves out of consideration the fact that the appellant is a member of (425) the association, as well as a debtor. That as such member, his indebtedness is a trust fund for the benefit of the other members of the concern, as well as for himself, and that his liability cannot be known until it is ascertained to what amount the association is insolvent.

As is said in Strauss v. B. L. A., supra, no money should be paid out by receivers, except for necessary expenses in making collection, but upon the order of the court. This rule may work a hardship in some instances, but it is necessary to the protection of the other members and creditors of the association.

It is said in the order that settlements may be made under Mills v. B. L. A., 75 N.C. 292. We do not know that we understand this part of the order. Strauss' case, supra, is the latest enunciation by this court upon the subject of winding up insolvent building and loan associations. And, while we do not understand Strauss' case to announce any doctrine in conflict with Mills' case, supra, but to be in entire harmony with that opinion, it discusses and provides for different phases arising in that case, and in this, that were not presented in Mills' case.

Therefore, what is said in Strauss' case and in this opinion will be sufficient, as we think, to enable the court to make proper orders for the direction of the receivers in this case. There is error, as is pointed out above.

Error.

Cited: Meares v. Davis, 121 N.C. 129; Meares v. Duncan, 123 N.C. 205;B. L. Asso. v. Blalock, 160 N.C. 492.

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