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Del.)

Morris Robinson, at the time of his death, and that it, as his property, Should pass into the hands of his administrator. We Cannot adopt this contention, for we do not think their failure to appear, under all the facts and Circumstances of this case, can overcome the presumption of ownership of the stock in another, and, if the property was not the property Of Robinson at the time of his death, the principal's failure to appear could not operate so as to vest the same in him. [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 AEtna 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 August, 1850. After the refusal of the executors of Dunham to comply With the demands made in March, 1885, by the executors Of A Verill 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 thereOn 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 reImain 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

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furnish evidence, not only of the payment of the $80 (the cash payment made thereon), but also that, of the 21 shares of the stock standing in Mr. Dunham's name, Mr. Averill was the owner of 8, having paid $80 therefor and become responsible for the balance of the installments when called in. It contained no agreement as to the future disposition of the Stock Or the dividends therefrom; that Was left Where the law left it.” 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 n0 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. Decree affirmed, With COStS to the appellee.

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

3. EJECTMENT (§ 9*) – RIGHT OF ACTION – 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.*]

Ejectment by Charles E. Littleton against Josiah C. Johnson. Mistrial.

Action of ejectment (No. 21, February term, 1911). The question of fact involved fully appears in the charge of the court, it being whether the deed of the defendant to the plaintiff, conveying the premises in question, was delivered to the plaintiff to take effect immediately, or was delivered to another to be held until the plaintiff had performed a certain condition, required by the defendant.

Argued before BOYCE and WOOLLEY, J.J.

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. In this case there is no controversy about party lines, the dispute being with reference to the whole of a tract of land. The main 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 delivered to take effect immediately, but, on 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 Voit from the beginning. [2] The mere possession of a deed 'y the grantee is not conclusive of its delivery, for

he may have received it without the act or 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 grantee. Doe ex dem. Guest v. Beeson, 2 Houst. 264.

From the Subsequent admissions and conduct of the grantor with reference to the property 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 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. Therefore it is the title of plaintiff that is in issue in this case. His title depends upon 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.

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TRUSTEES OF MUTUAL LOAN ASS'N v. TYRE

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10. PAYMENT 41*) – CoILATERAL SECURITIES. As a rule payments on account of collateral securities are not payments on account of the debt they secure. [Ed. Note.—For other cases, Dec. Dig. $41.*] 11. MoRTGAGES (§ 257*)—ASSIGNMENT AFTER MATURITY. An assignee of a mortgage under an assignment made after maturity of the secured note took it subject to all equities. [Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 682–687; Dec. Dig. § 257.*]

12. BUILDING AND LOAN AssocIATIONS (§ 44*) – ASSIGNMENT OF MORTGAGE – RIGHTS OF ASSIGNEE. A building and loan association, which accepted the assignment of a mortgage executes! to another association to secure a loan, upon the merger of the latter association with it, assumed by the merger the stock undertaking of the assignor; and upon its insolvency, preventing it from carrying out its contract, it cannot claim any rights which the assignor association could not claim, and hence cannot claim payment of the premium from the mortgagor. [Ed. Note.—For other cases, see Building and Loan Associations, Dec. Dig. § 44.*]

13. MoRTGAGES (§ 114*) – ENFORCEMENT AMOUNT. A mortgagor can only be charged with the amount actually received under the mortgage, though it was given for a greater sum. [Ed. Note.—For other cases, see Mortgages, Dec. Dig. § 114.*]

see Payment,

Action by the Trustees of the Mutual Loan Association against James H. Tyre, Survivor of Sarah E. Tyre, his wife, and others. Verdict for plaintiffS.

Argued before BOYCE and WOOLLEY, J.J.

Francis H. Hoffecker and C. W. Cullen, for plaintiffs. Andrew J. Lynch and Robert G. Houston, for defendant.

Sci. fa. Sur mortgage (No. 25, June term, 1910). After giving evidence to prove the execution of the mortgage and the nonpayment of the debt secured by it, the plaintiffs rested. Counsel for defendant moved for a nonsuit On the following grounds: First. That it had not been shown by the plaintiffs that James H. Tyre was a member Of the Mutual DOan ASSOCiation. Second. That the action was brought When the plaintiffs had no legal status in this COurt; the Second extension of time in Which they could bring suit, granted by the Chancellor, having expired on the 22d day of June, 1910, and the third extension of time Was not granted until the 13th day of July, 1910, and in the interim between those two times the suit was brought.

WOOLLEY, J. [1] It seems to us that your motion is for a nonsuit on the ground that the plaintiffs have not proved what may be a matter of defense. We Cannot grant the motion on that ground.

[2] On the second point the court is satisfied that under the pleas filed in this case,

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

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viz., payment, release, accord and satisfaction, this motion cannot prevail. If your contention is sound in point of law, it could only be reached by plea in abatement going to the right of the party to bring Suit.

Therefore We decline the motion for a nonSuit.

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 raised squarely the question of the right of the defendant to have the payment of his dues on stock applied to the credit of and in liquidation 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:

WOOLLEY, J. (delivering the opinion of the court). From the evidence and admission of the plaintiff it appears that the Mutual Loan ASSOciation and the Workingmen's Loan Association were corporations of the state of Delaware; that the mortgage Sued upon Was executed by the defendant and his wife on the 19th day of November, 1886, to the Workingmen's Loan Association, to secure the payment of the sum of $1,000, “at any time within three months from the date thereof” together with lawful interest thereon, payable monthly, and also the sum of $1, likewise payable monthly, “as and for the monthly installment on each and every of five shares of the capital stock of the Said corporation, transferred for money” thereby secured. It further appears that on the 29th of September, 1892, the mortgage was assigned to the Mutual Loan Association, the plaintiff, for the recited consideration of $1,000, with which association the Workingmen's Loan Association became merged Or aSSOciated; that before the assignment of the mortgage the defendant and his wife made monthly payments to the Workingmen's Loan Association of $10 for interest and dues, as provided in the mortgage, and after the assignment and until the 18th of October, 1898, they made like monthly payments to the Mutual Loan Association, in each case making remittances to George R. Maris, who was the secretary of each asS0ciation; that on the 22d day of June, 1902, the Mutual Loan Association became insolvent and was dissolved. The plaintiff admits that the obligation of the mortgage respecting the payment of interest and dues was fulfilled to the two associations until the 18th day of October, 1898, and that the defendant, while originally a subscriber for five shares of the stock of the Workingmen’s Loan ASSociation, Was by the merger or relation of the two aSSOciations entitled to the benefits of a like number of shares in the

of which, if the association had continued, the obligation of the mortgagor would have been canceled. The plaintiff claims that the dissolution of the Mutual Loan Association, because of its insolvency, made the principal debt secured by the mortgage at once due

and payable, and that there is now due

thereon the principal sum of $1,000, with lawful interest thereon from the 18th Of October, 1898, the date of the last interest payment, to the 22d day of June, 1902, the date of the dissolution of the association. The defendant states that he is prepared to show that he bid a very considerable premium for the money loaned him by the aSsociation and which is embraced within the principal debt of $1,000 recited in the mortgage, and offers to Show, by a tender of checks in evidence, that on account Of the loan transaction he has made 144 payments of $10 each, which, after deducting a fine, aggregate $1,438.10, and that he has therefore paid and discharged the entire principal and interest due upon the mortgage. It is Shown by the mortgage, as well as by the admission of the defendant, that of each monthly payment of $10, $5 was paid as interest upon the debt Secured by the mortgage and $5 as dues upon five shares of stock of the association, owned by one of the mortgagorS and aSSigned to the aSSociation aS collateral. The tender of the checks as evidence Of payment by the defendant of the Obligation of the mortgage suggests two questions: First, the status of a borrowing Stockholder of a loan association. When the aSSOClation is dissolved before its Stock is matured; and, second, the right of a borrowing stockholder, in Such a Situation, to have his Obligation to the association credited with the dues paid by him on his shares of Stock. [3] Building and loan aSSociations are corporations that deal in money. They are distinguished from other corporations that deal in money chiefly in the theory of their financial Operation S; and the theory of their financial operations, in its original conception, differs chiefly from that of other money corporations in that the full payment upon the subscription to the capital stock is completed at the end instead of the beginning Of their busineSS. Stockholders in a building and loan association, however, bear the Same relation to their Corporation and enter into contracts of SubScription of the same force and obligation as do stockholders in other corporations. [4, 5] When a Stockholder borrows money from the association of which he is a member, his contract of stock Subscription is not altered and his position as stockholder is not changed, except as his right to receive the profits upon his Stock is transferred to the association to secure the payment of the money borrowed. He assumes not a changDel.)

and becomes a debtor as well as a stockholder. He therefore has dual relations With the association, because he has made tW0 contracts, one to pay dues upon his stock and the other to pay interest. On his loan. The undertaking of the association to him is to so invest the dues and interest it receives, in common With those received from others, that his stock eventually Will become fully paid, and when fully paid will be applied in cancellation of his debt for the money borrowed. This is the consideration that 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 stockholderS. [6] What constitutes an equitable adjustment Of the assets and liabilities of an inSolvent 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 ordinary Creditor and debtor, and that the borrowing shareholder is to be charged with the amount actually received by him, with intereSt 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. ond 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

TRUSTEES OF MUTUAL LOAN ASS'N V. TYRE

The third View differs from the Sec-.

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case. In the matter of the Mechanics’ Loan ASSociation, heard by Chancellor Nicholson in 1904, upon the report of T. Bayard Heisel, master, it was decided that, in case of the insolvency of a loan association, dues paid upon Stock Should not be credited upon the obligation for money borrowed, following the law as declared by Mr. Justice Paxon in Strohen V. Franklin Savings & Loan ASsociation, 115 Pa. 273, 278, 8 Atl. 843, and in the later case of Coltrane V. Blake, 113 Fed. 785, 51 C. C. A. 457. [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 thereafter becomes a borrower or not, and if he beComes a borrower, his character as shareholder is not blended with that of borrower, , but remains separate and distinct, although his stock may be assigned to the association as collateral for the loan. Primarily, the mortgage given for a loan pledges the property 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 a contract of subscription that is silent as to an Obligation for money borrowed, and has no relation to Such an obligation except as it may thereafter be assigned as collateral to Secure its payment. In subscribing for Stock in a loan aSSociation, each Stockholder partakes of the adventure With the hope Of profit, and each takes the same hazard and risks the same money in Seeking that profit, whether he be a nonborrowing Stockholder who first pays his dues and then gets his 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

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