Paulk v. Calvert Mortgage Co.

Atkinson, J.

1. It is declared by statute: “All building and loan associations, and other like associations doing business in this State, are authorized to lend money to persons not members thereof, nor shareholders therein, at eight per cent, or less and to aggregate the principal and interest at the date of the loan for the entire period of the loan, and to divide the sum of the principal and the interest for the entire period of the loan into -monthly or other installments, and to take security by mortgage with waiver of exemption, or title, or both, upon and to real estate situated in the county in which said building and loan association may be located.” Civil Code (1910), § 2878. Also “The name ‘building and loan association,’ as used in this article, shall include all corporations, societies, or organizations or associations doing a savings and -loan or investment business on the building society plan, viz., loaning its funds to its members, whether issuing certificates of stock which mature at a time fixed in advance or not, except those which restrict their-business to the county of their domicile and not more than two other adjacent counties.” Civil Code (1910), § 2890.

2. A corporation whose charter authorizes it to lend “on real or personal property such sums of money as shall be from time to time paid in by stockholders in such manner as shall be prescribed by the bylaws of said association, . . and also for the purpose of transacting any and all business usual and lawful for the carrying on of the general business of a building and loan association as the same is now or may hereafter be conducted,” is a building and loan association within the meaning of the above quoted statute.

(a) The case under consideration differs on its facts from McIntosh v. Thomasville Real Estate &c. Co., 138 Ga. 128 (74 S. E. 1088, Ann. Cas. 1914C, 1302), in which it was field that the company there involved was not a building and loan association; but the principles recognized in the opinion delivered in that case support the above ruling.

(6) The Calvert Building and Loan Association of Baltimore City having been given powers as indicated in the second division, that association was a building and loan association within the meaning of the statute quoted in the first division.

3. Mere changes of name, first to the Calvert Mortgage and Deposit Company of Baltimore City, and later to the Calvert Mortgage Company, did not change the character of the corporation as a building and loan association.

4. It is declared in the Civil Code (1910), § 2887: “No building and loan association organized under the laws of any other State, Territory, or foreign government shall do business in this State, unless said association shall deposit, and continually thereafter keep deposited, in trust for all of its members and creditors, with some responsible trust company, or with the State depository of this or some other State of the United States, seventy-five per cent, of all its securities; all of the personal obligations of its members taken in the ordinary course of business of such association and secured by first mortgages on real estate; seventy-five per cent, of all dividends and interest which may accrue on securities held in trust, as aforesaid, by the trust company or the State depository, as provided for herein. All dues or monthly payments which may become payable on stock pledged as security for loans, the mortgages for which are on deposit in accordance with the provisions of this article, may be collected and retained by the association depositing such securities or mortgages. Any securities on deposit of said building and loan association in this State, if the amount of said securities so deposited is less than all of its securities, may, from time to time, be drawn, if others of equal value are substituted therefor. Every building and loan association, organized under the laws of any State, Territory, or foreign government, shall, before commencing to do business in this State — 1. File with the secretary of this State, a duly authenticated copy of its charter or articles of incorporation. 2. File with the secretary of this State the certificate of the proper State officer of another State, or the president or secretary of some responsible trust company, certifying that it has on deposit seventy-five per cent, of all the securities, not less than twenty-five thousand dollars, of the kind and amount required by the laws of such other State, taken in the regular course of business, in trust for all the members and creditors of such building and loan association. 3. File with the secretary of this State a duly authenticated copy of a resolution adopted by the board of directors of such association, stipulating and agreeing that if any legal process affecting such association be served on said secretary of State, and a copy thereof be mailed, postage prepaid by the party procuring the issuing of the same, or his attorney, to said association, addressed to its home office, then such service and mailing of such process shall have the same effect as personal service on said association in this State. 4. Pay the secretary of this State fifty dollars as fees for filing the papers mentioned. in this section.” Held: Even if a loan contract of the character involved in this case would be rendered illegal as violative of the laws of this State against usury, by failure, before making the contract, to file with the secretary of State the required certified copy of certificate of charter, or certificate of deposit, or consent as to service of process, such failure would not have such effect where, before making a loan contract dated July . 17th, 1913, being prior to the amendatory act of 1913 (Acts 1913, p. 54), the company filed with the secretary of State a certified copy of the original charter and subsequently filed the certificate of deposit, and the consent as- to service, in the changed name under which it was doing business; nor in the circumstances would the delay in filing a copy of the amendment making the last change of name until after the contract destroy its effectiveness. As to such a contract the- filing of the certified copy of the charter and the certificate of deposit and consent as to service in the changed name of the company would be a substantial compliance with the statute. A different ruling is not required by the case of Bradford v. Water Lot Co., 58 Ga. 280, where a different question was involved.

No. 4192. February 25, 1925.

5. There was no conflict of evidence on any material issue in the case.

6. Applying the- foregoing principles, the judge did not err in overruling the demurrer to the petition and in directing the verdict for the plaintiff. Judgment affirmed.

All the Justices concur. Eldridge Gutts and Quincey & Bice, for plaintiff in error. A. J. & J. C. McDonald, contra.