Kirklin v. Atlas Sav. & Loan Ass'n
| Decision Date | 21 April 1899 |
| Citation | 33 S.E. 83,107 Ga. 313 |
| Parties | KIRKLIN v. ATLAS SAVINGS & LOAN ASS'N. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. If upon the trial of title to land it appears that two persons owning distinct tracts agreed to exchange them, and gave bonds for titles the one to the other, and it further appears that after the delivery of the bonds for titles one conveyed his land by deed to a third person to secure the payment of money borrowed, and there was an agreement between the owner of this land and the holder of the bond for titles thereto whereby the latter consented that the former should borrow money upon the land, and convey the same to the third person as security, such an agreement is a waiver of the equity of the holder of the bond for titles in favor of the third person.
2. Where the charter of a building and loan association authorizes it to issue installment stock, and also stock wholly or partly prepaid, and no preference is given to the holder of the prepaid stock over other classes, such a system does not contravene the law of building and loan associations as to mutuality; and loans made to a stockholder on the installment plan, who pays interest at the legal rate, and also premiums, dues, and fines, are not infected with usury because one class of stock is paid for in advance and the other by installments.
3. There was evidence sufficient to authorize the finding that the borrower was a member of the association, the charge of the court fully and fairly covered the material issues involved, and the verdict was supported by the evidence.
Error from superior court, Catoosa county; G. F. Gober, Judge.
Action by the Atlas Savings & Loan Association against George W Kirklin. Judgment for plaintiff. Defendant brings error. Affirmed.
W. E. Mann and R. J. & J. McCamy, for plaintiff in error.
I. E Shumate, C. D. McCutchen, and T. C. Lattimore, for defendant in error.
From the record it appears that Cook owned a tract of land in Georgia, situated near Chattanooga, Tenn., and that Kirklin owned a tract in Tennessee known as the "St. Elmo Tract." Davis was a real-estate broker in Chattanooga and brought these parties together, whereupon they entered into a contract by which they agreed to exchange these tracts one for the other. Kirklin, for some reason, could not make Cook a title at the time the exchange was agreed upon, but had to apply to the chancery court and obtain a decree for this purpose. On account of Kirklin's inability to make a present title, he and Cook made and executed to each other bonds for titles. Cook wished to borrow money, and constituted Davis his agent to secure the loan for him. It was claimed by the plaintiff in the court below that Cook and Kirklin entered into what the witnesses called "an escrow contract," wherein they agreed that Cook should borrow money on the faith of his land in Georgia, and make the lender a deed to this land, and then, after Kirklin obtained a decree so as to be able to make Cook a title to the St. Elmo tract, the deed on the Georgia land was to be canceled, and a deed to the Tennessee land given in lieu thereof by Cook. This was disputed by Kirklin, who testified that no such contract was ever made by him. His wife, who claimed to have been present at the time the contract was alleged to have been made, also testified that there was no such contract made at that time. Other persons testified in behalf of the plaintiff that there was such a contract, one of the witnesses testifying that he wrote it. The Atlas Savings & Loan Association was a corporation organized under the laws of Tennessee as a building and loan association, and once each month it put up for competitive bidding the money it had on hand. On May 27, 1893, certain money was put up, and $1,600 was knocked off to Cook. Cook was not present at the bidding, nor does the record affirmatively show who made the bid for him. The books of the association show that the money was charged to him, and that his name was subscribed as a member of the corporation, no date, however, appearing as to when his name was subscribed. On June 1st, after this bidding for the money and the signing of Cook's name in the list of members, the bonds for titles between Cook and Kirklin were executed, and on this day it is claimed the "escrow contract" was entered into. On June 3d Cook made and executed a power of attorney to Davis authorizing him to borrow money, and to convey his land as security therefor, and on that day Davis executed a deed of Cook's title to the Georgia land to a trustee for the association. Cook defaulted in the payment of the interest on the loan and of his dues to the association. The trustee was notified, and under a power in the deed put up and exposed for sale in the city of Chattanooga the Georgia tract. It was purchased by the association, whose charter gave it this power. Shortly after the exchange of the bonds for titles, and before the execution of the deed from Davis, as attorney, to the trustee, Kirklin went to the Georgia land, and was put in possession by Cook, who told the tenants that Kirklin was in possession, and that they must thereafter attorn to Kirklin. The latter remained on the land about three hours, when he returned to Tennessee. About a month thereafter he moved from Tennessee to this land, and was in possession when the sale above described was had. The record does not show that Cook ever made a deed to the Georgia land to Kirklin, who was holding possession under the bond for titles. After the purchase of the land by the association at the trustee's sale, Kirklin refused to deliver possession to the association, whereupon...
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