Del.)

DOE v. ROE

47

Morris Robinson, at the time of his death, | furnish evidence, not only of the payment of and that it, as his property, should pass into the $80 (the cash payment made thereon), but the hands of his administrator. We cannot also that, of the 21 shares of the stock standadopt this contention, for we do not think ing in Mr. Dunham's name, Mr. Averill was their failure to appear, under all the facts and the owner of 8, having paid $80 therefor and circumstances of this case, can overcome the become responsible for the balance of the inpresumption of ownership of the stock in an- stallments when called in. It contained no other, and, if the property was not the prop- agreement as to the future disposition of the erty of Robinson at the time of his death, stock or the dividends therefrom; that was the principal's failure to appear could not left where the law left it." operate so as to vest the same in him.

In that case the court held that from the nature or character of the trust it was subject to the statute of limitations, and that from the facts disclosed therein the plaintiff's claim was barred by the statute. That case, however, is very unlike the case before us in many respects. In this case the stock was not issued in the name of Robinson in his own right, as in that case, but issued to him as agent, carrying with it, as we have said, the presumption that the ownership of the stock was in another and not in him. It was so entered upon the books of the company, and so remains to this day, unchanged, serving as a continuous assertion that the stock was not the property of Robinson in his own. name, but held by him in the name of another. Here there were no acts of Robinson that could be regarded as a repudiation of the trust; no dividends were ever collected by him, and therefore no refusal or neglect on his part to pay over the same. In that case dividends were regularly collected by Dunham and withheld by him. We cannot, from the facts and circumstances before us in this case, adopt the contention of the appellant and say that such a proceeding as above mentioned would be barred by the statute of limitations. From what we have said, we find no error in the ruling of the court below, and we will therefore affirm its decree.

[5] It is further contended by the appellant that, should the principal, by any appropriate proceeding, assert his or its claim or right, as such, to said stock now outstanding in the name of Morris Robinson, agent, such proceeding would be barred by the statute of limitations, and, although the stock might originally have been held by Morris Robinson as agent of another, that as a result of such bar the stock, so issued to him as agent, became his individual and absolute property. Whether a trust is subject to the statute of limitations is, to say the least, largely dependent upon the character and terms of the trust. In this case we have not before us the agreement or facts upon which the trust or agency was created, showing the exact relations existing between the principal and agent, to aid us in characterizing the trust or agency and in determining whether or not it is subject to the statute of limitations. In the case of Cone v. Dunham, 59 Conn. 145, 20 Atl. 311, 8 L. R. A. 647, cited in the brief of the appellant in support of his con tention, Averill, the plaintiff's testator, bought of one Dunham eight shares of the stock of the Etna Life Insurance Company, and to conceal his interest in the stock it remained in the name of Dunham on the books of the company down to the time of his death. The purchase was made in Augus, 1850. After the refusal of the executors of Dunham to comply with the demands made in March, 1885, by the executors of Averill to issue to them the stock to which they alleged they were entitled under the sale to Averill, the suit was instituted, which resulted in the lower court rendering a judgment against the defendant, ordering them to deliver and transfer to the plaintiffs the stock in controversy, and all dividends there-1. on received by the defendants or their testator. The Supreme Court of Connecticut, in discussing that case, said: "Here the trust is created by the transactions between the trustee and the cestui que trust. Mr. Dunham owned 21 shares of stock. Of this

Mr. Averill purchased 8 shares, which, for reasons of his own, he did not want transferred to himself, but did want them to remain standing in the name of Mr. Dunham and ostensibly his. Hence arose the necessity of the writing of August 14, 1850. The writing was in the nature of a receipt to

Decree affirmed, with costs to the appellee.

(3 Boyce, 97)

DOE ex dem. LITTLETON v. ROE et al.

(Superior Court of Delaware. Sussex. April 20, 1911.)

DEEDS (§ 108*)-DELIVERY-RECORD.

A deed takes effect from its delivery, and not from its record; the delivery being essential to complete the conveyance, while the recording of the deed is only essential to maintain its priority in force against subsequent conveyances and incumbrances.

[Ed. Note. For other cases, see Deeds, Cent. Dig. 88 294-308; Dec. Dig. 108.*] 2. DEEDS (§ 208*)-DELIVERY-POSSESSION.

Mere possession of a deed by the grantee is not conclusive of its delivery, as the grantee may have received it without the act or intention of delivery on the part of the grantor.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 625, 627; Dec. Dig. § 208.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

3. EJECTMENT (§ 9*)- RIGHT OF ACTION, he may have received it without the act or STRENGTH OF TITLE.

Plaintiff in ejectment must recover, if at all, on the strength of his own title, without regard to the strength or weakness of the title of defendant.

[Ed. Note.-For other cases, see Ejectment, Cent. Dig. § 18; Dec. Dig. § 9.*]

intention of delivery on the part of the grantor. Delivery is an act either by the grantor or by another under his direction or with his permission, accompanied with the intention of the grantor that the instrument pass from himself or from his control to the

Ejectment by Charles E. Littleton against grantee. Doe ex dem. Guest v. Beeson, 2

Argued before BOYCE and WOOLLEY, JJ. Robert C. White and James M. Tunnell, for plaintiff. Andrew J. Lynch and John M. Richardson, for defendant.

WOOLLEY, J. (charging the jury). Gentlemen of the Jury: This is an action of ejectment brought by Charles E. Littleton, the plaintiff, against Josiah C. Johnson, the defendant, to recover a tract of land in Broad Creek hundred, in this county, which is now in the possession of the defendant.

Houst. 264.

duct of the grantor with reference to the From the subsequent admissions and conproperty intended to be conveyed, as well as from the instrument of conveyance, the grantor's intention of delivery may be gathered and inferred.

[3] A plaintiff in an action of ejectment own title, without regard to the strength or must recover, if at all, on the strength of his own title, without regard to the strength or

weakness of the title of the defendant. in issue in this case. His title depends upon Therefore it is the title of plaintiff that is the validity of the deed under which he makes his claim. The validity of that deed depends upon its delivery, the legal effect of which, so far as to enable the plaintiff to recover, depends upon its absolute or conditional character. If you find that the deed was delivered by Johnson to Littleton absolutely and in completion of their transaction, your verdict should be that: "We find that the defendant is guilty of the trespass and ejectment in the plaintiff's declaration mentioned." If you find that the deed was not delivered at all, or, if delivered, it was delivered upon a condition that it be held by another and withheld from Littleton until a certain condition was by him performed or a certain thing done, then your verdict should be: "We find that the defendant is not guilty," etc.

In this case there is no controversy about party lines, the dispute being with reference to the whole of a tract of land. The mair contention of the plaintiff is that he purchased from the defendant the tract of land in question, and completed the purchase by receiving from the defendant the deed conveying the land to him, the delivery of which was absolute and complete in its nature. The defendant, on the other hand, contends that he made a contract to sell the land to the plaintiff but that the deed was not de(3 Boyce, 88) livered to take effect immediately, but, on TRUSTEES OF MUTUAL LOAN ASS'N v.

the contrary, it was given to the conveyancer, to be by him held for a period of ten days, during which time the plaintiff was to perform a certain condition, by making payment of a certain sum of money. The issue in this case, therefore, is one of delivery, that is, whether the delivery of the deed, purporting to convey to the plaintiff the title to the premises, was absolute or conditional.

[1] The delivery of a deed is essential to its validity. The recording of a deed is not essential to its validity as between the parties, and is important chiefly to maintain its priority and force against subsequent conveyances and encumbrances. A deed takes effect from its delivery and not from its record, and without a delivery it is voi from the beginning.

[2] The mere possession of a deed by the grantee is not conclusive of its delivery, for

The jury disagreed.

TYRE.

(Superior Court of Delaware. Sussex. April 18, 1911.)

1. BUILDING AND LOAN ASSOCIATIONS (§ 39*)

-FORECLOSURE-NONSUIT.

A nonsuit will not be granted for failure of plaintiff to show that defendant, in an action by a building association to foreclose a mortgage, was a member of the association.

[Ed. Note.-For other cases, see Building and Loan Associations, Dec. Dig. § 39.*]

2. ABATEMENT AND REVIVAL ( 22*) - DISMISSAL AND NONSUIT (§ 53*) - PLEA IN ABATEMENT-NECESSITY.

That plaintiff insolvent loan association had no authority to sue. because the time within which it was authorized by the court to sue had expired, was not ground for a motion for a nonsuit, being matter for plea in abatement.

[Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. §§ 148-156; Dec. Dig. § 22;* Dismissal and Nonsuit, Dec. Dig. § 53.*]

TRUSTEES OF MUTUAL LOAN ASS'N v. TYRE

3. BUILDING AND LOAN ASSOCIATIONS (§ 8*), 10. PAYMENT (§ 41*) - COLLATERAL SECURI-STOCKHOLDERS-RELATIONS.

7. BUILDING AND LOAN ASSOCIATIONS (§ 26*) tion of the mortgage and the nonpayment of

[Ed. Note. For other cases, see Building and plaintiffs that James H. Tyre was a member

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

viz., payment, release, accord and satisfac-1 of which, if the association had continued, tion, this motion cannot prevail. If your the obligation of the mortgagor would have contention is sound in point of law, it could been canceled. The plaintiff claims that the only be reached by plea in abatement going dissolution of the Mutual Loan Association, to the right of the party to bring suit. because of its insolvency, made the principal Therefore we decline the motion for a non- debt secured by the mortgage at once due

As proof of the payment of the mortgage debt, the defendant offered in evidence a large number of checks, each being for a sum that aggregated the amount of monthly dues and monthly interest due from himself to the plaintiff association. This tender raisThe defendant states that he is prepared ed squarely the question of the right of the to show that he bid a very considerable predefendant to have the payment of his dues mium for the money loaned him by the ason stock applied to the credit of and in liqui-sociation and which is embraced within the dation of the debt secured by his mortgage. The question was argued at length upon briefs, and held under advisement from April 14th to April 18th, when the court delivered the following opinion:

vent and was dissolved. The plaintiff admits that the obligation of the mortgage respecting the payment of interest and dues was [4, 5] When a stockholder borrows money fulfilled to the two associations until the from the association of which he is a mem18th day of October, 1898, and that the de- ber, his contract of stock subscription is not fendant, while originally a subscriber for five altered and his position as stockholder is shares of the stock of the Workingmen's not changed, except as his right to receive Loan Association, was by the merger or re- the profits upon his stock is transferred to lation of the two associations entitled to the the association to secure the payment of the benefits of a like number of shares in the money borrowed. He assumes not a chang

Del.)

TRUSTEES OF MUTUAL LOAN ASS'N v. TYRE

51

In the matter of the Mechanics' Loan

and becomes a debtor as well as a stockhold- | case. er. He therefore has dual relations with Association, heard by Chancellor Nicholson the association, because he has made two in 1904, upon the report of T. Bayard Heisel, contracts, one to pay dues upon his stock master, it was decided that, in case of the and the other to pay interest on his loan. insolvency of a loan association, dues paid The undertaking of the association to him upon stock should not be credited upon the is to so invest the dues and interest it re- obligation for money borrowed, following the ceives, in common with those received from law as declared by Mr. Justice Paxon in others, that his stock eventually will become Strohen v. Franklin Savings & Loan Asfully paid, and when fully paid will be ap-sociation, 115 Pa. 273, 278, 8 Atl. 843, and plied in cancellation of his debt for the mon- in the later case of Coltrane v. Blake, 113 ey borrowed. This is the consideration that Fed. 785, 51 C. C. A. 457. induces the stock subscription. The solvency of the association is essential to its performance, and its insolvency defeats its performance and puts an end to the operations of the association. It likewise ends the contract of the stockholder in so far as he is relieved of the further payment of dues, and determines contracts for money borrowed, and nothing remains but to wind up the association in such a manner as to do equity to its creditors, its debtors and its stock

[7, 8] From these cases, as from others cited by counsel in their very thorough and helpful argument, it appears that the relative rights of borrowing and nonborrowing shareholders in the adjustment of the affairs of an insolvent loan association depend largely upon their status in relation to the association. It further appears that their status is determined by the character of their contract or contracts. One who enters into the contract of a shareholder retains the status of a shareholder whether he thereaft[6] What constitutes an equitable adjuster becomes a borrower or not, and if he be

holders.

ment of the assets and liabilities of an in

solvent building and loan association, when the relative rights of stockholders of different classes are considered, or the conflicting claims of borrowing and nonborrowing stockholders are to be determined, as in this case, has been the subject of much dispute and some difference of opinion. There appear to be three views upon the subject. The first is that the relation between the association and a borrowing shareholder, who has given his obligation for an amount equal to the sum borrowed and the premium bid, is changed by the circumstance of insolvency to the relation subsisting between an ordi

holder is not blended with that of borrower, comes a borrower, his character as sharebut remains separate and distinct, although his stock may be assigned to the association mortgage given for a loan pledges the propas collateral for the loan. Primarily, the erty thereby secured for the payment of the dues upon the stock as well as the debt created by the loan, while stock is issued upon to an obligation for money borrowed, and a contract of subscription that is silent as has no relation to such an obligation except as it may thereafter be assigned as collateral to secure its payment. to secure its payment. In subscribing for nary creditor and debtor, and that the bor- stock in a loan association, each stockholder rowing shareholder is to be charged with the partakes of the adventure with the hope of amount actually received by him, with inter-profit, and each takes the same hazard and est at the legal rate and credited with all payments made, whether by way of dues, interest or premium, according to the rule of partial payments. The second view is that the borrowing shareholder is entitled to credit upon his loan for the amount of interest and premium paid by him, but is not entitled to have the amount of the dues paid by him on account of stock credited upon the loan. The third view differs from the second in that, instead of crediting the borrowing shareholder with the whole premium, it credits him only with the part estimated as unearned. The authorities all agree that the borrower should be charged with the amount loaned him, with interest at the rate fixed by law (6 Cyc. 155, 156), and the authorities, by a clear weight, reject the enforcement of any part of the premium, the principal and remaining point in dispute being the application of dues paid on stock to the discharge of an obligation for money borrowed.

Upon this question we have a decision in our own state which we think rules this

risks the same money in seeking that profit, who first pays his dues and then gets his whether he be a nonborrowing stockholder profits, or a borrowing stockholder who by a loan first takes his profits and then pays his dues with the hope that upon the maturity of his stock his obligation will be

returned to him canceled.

[9, 10] Equality of opportunity carries equality of responsibility, and if loss instead of profit comes, it is difficult to see why a nonborrowing stockholder should yield a part of his property to reimburse his equally unfortunate fellow stockholder who happened to be a debtor to the association for money borrowed from it. The stock status of each being the same, it is therefore held by the weight of authority, that payments on stock are not ipso facto payments on a mortgage debt and that dues paid on stock do not ipso facto work a pro tanto extinguishment of the mortgage (Link v. G. B. Ass'n, 89 Pa. 15), even when assigned as collateral (Economy B. Ass'n v. Hungerbushler, 93 Pa. 258), for it is a general doctrine of the law