Collins v. Citizens' Bank & Trust Co

• Decision Date: 21 December 1904
• Citation: 121 Ga. 513,49 S.E. 594
• Court: Georgia Supreme Court
• Parties: COLLINS v. CITIZENS' BANK & TRUST CO.

49 S.E. 594

121 Ga. 513

COLLINS

v.CITIZENS' BANK & TRUST CO.

Supreme Court of Georgia.

Dec. 21, 1904.

building association—loans—bids—usury —foreclosure—evidence.

1. The Tennessee statute requires competitive bids for loans made to members by building associations, but such bid may be in writing.

2. The contract was within the scheme of a building and loan association proper, and not usurious on its face.

3. There was no formal plea of usury, and the payments claimed in the defendant's plea were in fact allowed by the plaintiff.

4. The rulings as to the admission of evidence objected to were immaterial, since they could not, in any event, have changed the result.

5. The plaintiff made out a prima facie case by the introduction of the note and mortgage This cast the burden upon the defendant, which he failed to carry, and there was no error in refusing to grant a new trial.

(Syllabus by the Court.)

Error from Superior Court, Floyd County W. M. Henry, Judge.

Action by the Citizens' Bank & Trust Company, trustee, against J. A. Collins. Judgment for plaintiff, and defendant brings error. Affirmed.

In August, 1892, Collins made to the Citizens' Bank & Trust Company of Tennessee a mortgage in trust for the purpose of securing a promissory note payable to the Atlas Savings & Loan Association of Tennessee, chartered as a building and loan association under the laws of Tennessee. In addition to the promise to pay the principal sum, this note also promised to pay certain amounts for each week for dues, interest, and premiums. The trust company instituted, in the superior court of Floyd county, proceedings to foreclose the mortgage for the balance due. The rule nisi issued. By an amendment the plaintiff made profert and an exhibit of the constitution, charter, and by-laws of the Atlas Savings & Loan Association. The defendant answered, denying the allegations of the original petition, and that he was the owner of any of the capital stock of the Atlas Savings & Loan Association, and averred that it was not a building and loan association pure and simple, but that it had devised a scheme under the form of a building and loan contract for exacting usurious interest There was also attached a list of payments made by the defendant, and a statement in the plea that "upon an accounting he believes he has paid the original loan, the interest due upon it and a sum in excess of those charges." The plaintiff Introduced the note, the charter, by-laws, and constitution contained in the book furnished to the defendant, and the act of the Tennessee Leg-islature on the subject of a building and loan association, from which it appeared that the premium bid by borrowing stockholders for the preference or priority of loans may be paid in installments, not as a part of the loan, and not as interest, but as a means of determining which one of the shareholders shall receive a loan whenever there are a number of stockholders who may simultaneously desire to effect a loan. The plaintiff also introduced the application of the defendant for membership, and constituting Rood his attorney and agent to sign the rules and by-laws, which the plaintiff also agreed to abide by. The defendant objected to the admission of the by-laws signed by Rood and to the proof of the charter; and in several assignments of error raised the point that under the Tennessee statute the bid for the loan could only be in person, and there was evidence that defendant's bid had been made in writing, and that such written bid had been read and accepted at a meeting for the sale of money. The...