Haigh v. United States Bldg.

• Decision Date: 01 July 1882
• Citation: 19 W.Va. 792
• Court: West Virginia Supreme Court
• Parties: Haigh v. United States Building, Land and LoanAssociation.

19 W.Va. 792

Haigh

v.United States Building, Land and Loan

Association.

Supreme Court of Appeals of West Virginia.

Submitted June 7, 1880.

Decided July 1, 1882.

1.An article in the constitution of a building association provided: "Any member wishing to have his deed of trust released shall repay the full amount of money covered by his deed of trust, &c. hut in all cases he shall receive credit on his note for dues paid on his stock to the association." The notes taken by the association were not for the money actually loaned but for the par value of the stock; and it could demand interest not oa the face value of these notes but only on the money actually loaned; and the principal of the note was not intended to be paid but both it and the premium was at the close of the association to be offset against the par value of the shares, which would then be due to the redeeming member. Held:

This article of the constitution was intended to permit a redeeming member to pay up his loan in advance and obtain a release of his deed of trust and to provide, that where this was done, the settlement should be so made, that neither the association nor the borrower should sustain pecuniary loss, but each party should be left in the same pecuniaiy condition, that he would have been in, had the member not paid his loan in advance but continued a member of the association to its close; and to effect this purpose of this article the details of the settlement so awkwardly expressed must be to some extent departed from; but a mode of settlement should be adopted corresponding as closely, as may be, to the mode indicated in the article consistently with its general purpose. This would be effected by requiring the withdrawing member to pay the present value of all moneys, which he would be required to pay in the future, were he to continue to be a member of the association; and this present value should be found by discounting the future payments of both dues and interest to the estimated close of the association at the rate of six per centum per annum for the average time of such future payments. Jlaigh v. United States Building, Land and Loan Association, (p. 802).

2.A party, who has voluntarily paid money with a full knowledge of all the facts and circumstances but under a mistake as to the law, cannot recover it back; and therefore a member of such building association, who has voluntarily paid more money to obtain a release of his deed of trust, than under its constitution the building association could have required, cannot recover it back, if he knew all the facts, when he made the payment, but was mistaken as to his legal rights, (p. 810) 3.A member of a building association, who complies with its constitution and by-iaws and under theirj provisions withdraws, can recover the amount due him under such constitution and by-laws by an action of assumpsit, in which there is no special count but only the common counts, (p. 801).

4.If in such a suit the case is submitted by consent to the court in. lieu of a jury, who renders a judgment for the plaintiff, and in a bill of exceptions taken by the defendant all the facts proven are certified by the court, and it appears, that they were all admissible under the common counts in the declaration and justify the judgment of the court, this court will not reverse such a judgment, because the circuit court overruled improperly a demurrer to a defective special count, as the defendant could not possibly be prejudiced in such a case by such error. (p 801).

Writ of error and supersedeas to a judgment of the circuit court of the county of Ohio, rendered on the 1st day of November, 1879, in a case in said court then pending, wherein John J. Haigh was plaintiff and the United States Building, Land and Loan Association was defendant, allowed upon the petition of said defendant.

Hon. Thayer Melvin, judge of the first judicial circuit, rendered the judgment complained of.

Green, Judge, furnishes the following statement of the case:

This was an action of assumpsit brought by John J. Haigh against The United States Building Land and Loan Association in the circuit court of Ohio county, to recover $409.25, claimed to be due to him on his withdrawing as a member of the association according to the provisions of the constitution of said association. At tne trial of the case it was proven, that the facts, on which this suit was instituted, were as follows: The defendant was a corporation organized under the laws of the State of West Virginia as a building association, having its principal office of business in the city of Wheeling. On the 27th of October, 1877, the plaintiff became a member and stockholder of said corporation subscribing to ten shares of its stock, and on November 22, 1874, he subscribed for five additional shares. On the 5th day of December the plaintiff redeemed of these shares five, on December 25, 1874, three shares, on July 28, 1875, one share, and on October 19, 1875, three shares, in all twelve shares, He received on the redemption of these twelve shares in all $1,116.00, and executed his notes for $1,800.00 in all, the par value of these twelve shares at $150.00 for each share. These notes were drawn payable seven years after their respective dates, all of them being dated back to December 1, 1874, with interest payable quarterly in advance; and on the face of the notes he pledged his shares so redeemed as security. These notes though given at these several dates, when these shares were redeemed, are all dated December 1, 1874. And on the 30th day ot December, 1874, the plaintiff gave a deed of trust on certain real estate u in trust to secure to the defendant the prompt and full payment of $2,250.00, as evidenced by certain promissory notes made and executed by said John J. Haigh, dated December 1, 1874, amounting in all to the sum of $2,250, 00, payable seven years after date to the defendant for value received, with interest from date payable quarterly in advance; and further to secure to the defendant the prompt and full payment when due of each instalment of interest on each of said notes, the prompt and full payment of all dues, fines and other charges, which said John J. Haigh may be assessed as a member of said association, and the repayment of any and all sums, which the said association may have to pay for taxes, insurance or other charges on said property."

This deed, though dated December 30, 1874, was actually executed and recorded December 5, 1874, and when it was executed, only three shares had been redeemed, and only one note given of $450.00. The notes secured are said in the deed of trust to amount in the aggregate to $2,250.00, which was the par value of the fifteen shares owned by the plaintiff; and the deed of trust was thus intended to secure not only the note given for the redemption of the three shares, which had been redeemed, when it was given, but for the prospective redemption of all the shares; and when other shares were afterwards redeemed, the notes were all dated back to December 1, 1874, and were so written as to correspond with the general descriptions of the notes, which had been inserted in this deed of trust. The plaintiff paid up regularly and promptly his entrance-fee and all dues and interest on the notes, which he had executed, up to November 7, 1876.

On the 20th day of October, 1876, the plaintiff called on the secretary of the defendant and stated his desire to retire from the association entirely and enquired how much he owed. He was told by the secretary, that his debt amounted to about §1, 240.00; and that the association would not relieve him then, unless he paid it. The plaintiff left and after a time returned and told the secretary, that he thought this sum was too much. The secretary then again made a calculation and stated, that the amount to be paid by the plaintiff was $1,118.00 and gave him a statement of his calculation.

Section 1 of article X of the constitution of the association provided: "Every member shall pay an entrance fee of 25 cents on each share and shall pay on every Tuesday 25 cents on each share held by him having the right however to pay his dues in advance." And section 1 of article XIV provided: "Any member may withdraw from this association any orall of the unredeemed shares held by him, upon written notice thereof to the directory, who shall within one month thereafter repay to such member the weekly dues per share received of him to the date of his withdrawal, and the withdrawing shareholder shall receive simple interest, at the rate of six per cent, per annum on the average amount paid." The 7th section of article 14 and the article 21 provided:" Any member redeeming any of his shares and giving his stock as security for the same, if he should become at any time unable to pay his dues and interest and wish to withdraw from the association, he shall notify the directory of the same, whose duty it shall be to have said member paid all moneys due him with interest as per section 1, article 14, first deducting all fines and his portion of the expense incurred by the association."

The statement made out by the secretary, on which the plaintiff and defendant settled, when the plaintiff withdrew from the association, charged the plaintiff on the twelve redeemed shares with dues for the estimated time, during which the association would continue, assumed to be seven years from its commencement, December 1, 1874, that is, 256 weeks, four years ten months from the time of the settlement. These estimated future dues on these twelve shares was $768. He was also charged with interest on the par value of these twelve shares, that is, on $1,800.00, that being the full amount of his notes. This interest on these notes for this future time, four years and ten months, amounted to $522.00. If this interest had been charged, as under the decisions of this court recently made it clearly should have been, only on the...