Tobin v. McNab , 53 S.C. 73 ( 1898 )

The opinion of the Court was delivered by

Mr. Justice Gary.

The facts out of which this action arose are set forth in the decree of the Circuit Judge. The first question which will be considered is whether the contract is to be construed by the laws of Georgia or South Carolina. In the certificate of shares which the defendant holds in the said association are the following provisions: “This certificate is issued and accepted by the stockholders upon the following express terms and conditions: 1st. The stockholder agrees to pay this association sixty cents per month, on the first of each month, for each share held, until such share matures or is withdrawn. 2d. All moneys due from the stockholder to the association, and due from the association to the stockholder, shall be due and payable at the home office, Atlanta, Ga.; provided, however, that payments may be made to a local treasurer for transmission to the home office. In such case, the local treasurer will be deemed the agent of the local stockholder and not of the association, and payments will be credited to stockholders only after receipt at the home office.” The following is a regulation of the association as to loans: “The funds of the association will be loaned only to members. Roans must be secured by deed or first mortgage, and must not exceed fifty per cent, of the cash value of the real estate and improvements. Applications for loans will not be entertained at the home office unless first approved by local boards, and when deemed necessary our traveling appraiser views the property before loans are granted. The rate of interest .will be six per cent, per annum on the money loaned. All members desiring loans will be charged a fixed rate of fifty per cent, premium. All interest is payable monthly in advance, with dues. The premium is not paid in cash; but a borrower must carry stock enough so that its par value' will be equal to the amount of the loan and premium together. All that is required of the borrower is to pay the interest on the loan and the monthly payments on the stock. When the stock matures it repays the loan and premium.”

1 The appellant’s attorneys contend that the foregoing provisions in the certificate refer to the contract for subscription to stock, and not to the contract for the repayment of the loan evidenced by the bond and mortgage. The regulation as to loans shows that the interest was to be paid monthly in advance, with the dues, in the manner stated in the said certificate. The parties did not contemplate that the contract should be construed in part by the laws of Georgia and in part by the laws of South Carolina. The circumstances relied rrpon by the appellant are not sufficient to sustain a contrary view.

2 The next question which will be considered is whether the contract was construed in accordance with the laws of Georgia. It was incumbent on the appellant to show that there was error on the part of the Circuit Judge, which has not been done, as the principles announced by the Circuit Judge are in conformity with the cases of Equitable B. & L. A. v. Vance, 49 S. C., 402, and Equitable B. & L. A. v. Hoffman, 50 S. C., 303. The legislature, at its last session, wisely passed an act, that “all contracts secured by mortgage of real estate situate within this State shall be subject to and construed by the laws of this State regulating the rate of interest allowed, and in all other respects, without regard to the place named for the performance of the same.” 22 Stat., 747. The act, however, has no application to this case.

Having reached these conclusions upon the two questions which we have considered, it becomes unnecessary to consider the other exceptions, as the questions raised by them are merely speculative.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.