63 N.E. 723 (Ind.App. 1902), 3,789, Bowlby v. Kline

Docket Nº:3,789
Citation:63 N.E. 723, 28 Ind.App. 659
Opinion Judge:ROBY, J.
Party Name:BOWLBY v. KLINE ET AL
Attorney:T. B. Adams, Isaac Carter, A. E. Lisher and Joseph Chez, for appellant. L. F. Wilson, A. F. Wray and T. H. Campbell, for appellees.
Judge Panel:ROBY, J., Black, Robinson, Wiley, Henley, JJ., concur., Comstock, C. J., dissents., COMSTOCK, C. J. dissents. Black, Robinson, Wiley, Henley, JJ., concur. Comstock, C. J., dissents. COMSTOCK
Case Date:April 11, 1902
Court:Court of Appeals of Indiana
 
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Page 723

63 N.E. 723 (Ind.App. 1902)

28 Ind.App. 659

BOWLBY

v.

KLINE ET AL

No. 3,789

Court of Appeals of Indiana

April 11, 1902

From Shelby Circuit Court; F. E. Gavin, Special Judge.

Action by Andrew C. Bowlby against Mary E. Kline and others to foreclose a mortgage assigned to him by a building and loan association. From a judgment for defendants, plaintiff appeals.

Affirmed.

T. B. Adams, Isaac Carter, A. E. Lisher and Joseph Chez, for appellant.

L. F. Wilson, A. F. Wray and T. H. Campbell, for appellees.

ROBY, J., Black, Robinson, Wiley, Henley, JJ., concur., Comstock, C. J., dissents., COMSTOCK, C. J. dissents.

OPINION

ROBY, J.

The legislature by an act which became effective July 1, 1897, provided, among other things, that "The bonds, notes or mortgages belonging to any association shall not be negotiable except upon an order of the circuit court or the judge thereof, in vacation, of the county in which the principal office of said association is situated." § 4463e Burns 1901.

The first paragraph of complaint is founded upon a note and mortgage executed October 16, 1894, by John Kline, to the Mutual Loan & Savings Company of Shelbyville, Ind., in the form usual to building and loan contracts. An assignment thereof was made by the payee to appellant on December 8, 1898. The appellant held second mortgages covering the same land described in the first paragraph, and [28 Ind.App. 660] set them up in subsequent paragraphs of the complaint. Kline paid all amounts due under the contract up to March 6, 1897, and departed this life, April 22, 1897, leaving an estate of less than $ 500, which was set over to his widow under the statute. No payments were made after March 6th aforesaid. The payee of the note was a building and loan association, organized under the laws of the State of Indiana. The assignment was made without any order by any court or judge, as provided by the act of the legislature above set out.

The first conclusion of law was to the effect that the transfer by the payee was in violation of law, and that appellant was not entitled to recover on his first paragraph of complaint.

The correctness of the conclusion depends: (1) Upon whether the act of 1897, applies to instruments executed prior to its enactment; (2) whether if so applied it impairs the obligation of such contracts; (3) whether a building and loan association prior to its enactment had or had not power to negotiate its securities.

The powers of building and loan associations conferred by the act of 1885 included those of suing and being sued, of holding and conveying real estate and personal property, of loaning money and securing its repayment by note or mortgage and otherwise; of purchasing at sheriff's or public sale real estate upon which it had an encumbrance, or in which it had an interest; of conveying, leasing or mortgaging such real estate; of purchasing real estate and conveying it in fee simple, not in excess of fifty acres at one time. Acts 1885, p. 81, §§ 2, 3, 10, and 11, §§ 4445, 4446, 4453, 4454 Burns 1901. The right of a stockholder to withdraw and receive the amount paid in by him was also fixed by statute. Acts 1885, p. 81, § 4447 Burns 1901. There was no legislation...

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