Mok v. The Detroit Building and Savings Association No. 4

• Citation: 30 Mich. 511
• Court: Supreme Court of Michigan
• Decision Date: 06 January 1875
• Parties: Andrew Mok and another v. The Detroit Building and Savings Association No. 4

30 Mich. 511

Andrew Mok and another v. The Detroit Building and Savings Association No. 4

Supreme Court of Michigan

January 6, 1875

Heard October 27, 1874; October 28, 1874. [Syllabus Material] [Syllabus Material]

Appeal in Chancery from Superior Court of Detroit.

This was a bill for an accounting to ascertain the amount equitable due upon a mortgage given by the complainants to the defendant, and, upon payment thereof, for a discharge or cancelment of the mortgage; and it prayed for an injunction against proceedings to foreclose the same. The mortgage was given for the sum of one thousand dollars, but only six hundred and forty-four dollars were actually received by the complainants in consideration thereof, the residue being retained as a premium for priority of loan under the rules of the society. The complainants had paid into the company before receiving this money and executing the mortgage, in weekly dues, the sum of eighty-four dollars, and afterwards paid in the sum of two dollars weekly as dues, and one dollars and twenty cents weekly as interest, from May 23, 1870, to February 24, 1874. The computation was made up by calculating interest, from the date of payment to the date of the mortgage, upon the weekly dues paid in before the giving of the mortgage, and deducting the amount of such payments and interests, from the sum received in consideration of the mortgage, and taking that balance as a principal, the subsequent weekly payments were applied as partial payments. This left unpaid on the mortgage on February 24, 1874, when complainants ceased paying, the sum of two dollars and twelve cents. The court below decreed that on payment of that sum and interest the mortgage be canceled and discharged, and granted a perpetual injunction against foreclosure. From this decree the defendant appealed.

The condition of the bond given with said mortgage, and to which it was collateral, was as follows:

"The conditions of this obligation are such that, whereas, the said Andrew Mok is a member of said association, and the owner of eight shares of its stock, on which stock he, the said Andrew Mok, on the seventeenth day of May, 1870, made a loan of the sum of one thousand dollars, pursuant to the provisions of the constitution and by-laws of said association, on which sum of one thousand dollars they agree to pay said association interest, to-wit: the sum of one dollar and twenty cents weekly in advance, from the date thereof, on or before the Monday of each and every week during the existence of said association, and in like manner at the same time and for the same period, to pay a weekly assessment of twenty-five cents on each and every share of stock owned by him, and on which he has taken a loan as aforesaid, and also to pay all fines that may be legally assessed against him under and by virtue of the said constitution and bylaws, or any amendments that may be made thereto; also to keep the buildings, on the premises mortgaged to secure the conditions of this obligation, insured during the existence of this association, against loss and damage of fire, to the acceptance of the directors of said association, in the sum of not less than five hundred dollars, for the benefit of said association, and to pay all taxes and assessments which may be levied on said mortgaged premises during the existence of said association, including all taxes that may be assessed on the loan or money hereby secured, and to comply with all and singular the constitution and by-laws so far as they are binding upon him.

"Now, therefore, if the said Andrew Mok shall promptly pay to said association said weekly dues or assessments as aforesaid, and the interest upon the sum loaned as aforesaid, amounting to the sum of three dollars and twenty cents, on or before the Monday of each and every week during the existence of said association as aforesaid, and shall pay all fines that may be legally assessed against him as aforesaid, shall insure and keep insured said mortgaged premises as aforesaid, shall pay the taxes which may be legally levied upon them and upon the sum loaned, during the life of said association, and shall comply with all and singular the conditions of said constitution and by laws so far as they are binding upon him, then this obligation shall be void, otherwise be and remain in full force and virtue.

"Provided, that in case said Andrew Mok shall be in fault in paying said sum of money or any part thereof, as aforesaid, for the period of sixty days after the same becomes due, then the sum of money loaned as aforesaid, shall become immediately due and collectible, with the interest in this bond specified."

The mortgage contained a similar condition.

The articles of association, the constitution and the by-laws of said defendant association are given below. ^[*]

Decree affirmed, with costs.

Gartner & Burton, Alfred Russell, F. H. Canfield and S. T. Douglass, for complainants.

Chipman, Dewey & Hawes, D. C. Holbrook, G. V. N. Lothrop and Theodore Romeyn, for defendant.

OPINION

Cooley, J.:

The constitution of the state provides that "No law shall be revised, altered or amended by reference to its title only; but the act revised, and the section or sections of the act altered or amended, shall be re-enacted and published at length:" Art. IV., § 25. The application of this section to certain acts of legislation is the principal question presented by this record. No one questions the great importance and value of the provision, nor that the evil it was meant to remedy was one perpetually recurring, and often serious. Alterations made in the statutes by mere reference, and amendments by the striking out or insertion of words, without reproducing the statute in its amended form, were well calculated to deceive and mislead, not only the legislature as to the effect of the law proposed, but also the people as to the law they were to obey, and were perhaps sometimes presented in this obscure form from a doubt on the part of those desiring or proposing them of their being accepted if the exact change to be made were clearly understood. Harmony and consistency in the statute law, and such a clear and consecutive expression of the legislative will on any given subject as was desirable, it had been found impracticable to secure without some provision of this nature; and as the section requires nothing in legislation that is not perfectly simple and easily followed, and nothing that a due regard to clearness, certainty and simplicity in the law would not favor, it is probable that if the requirement has at any time been disregarded by the legislature, the default has proceeded from inadvertence merely. Whether there has been such inadvertence in the legislation now questioned, is the point in dispute.

The act "to authorize the formation of corporations for building and leasing houses and other tenements" was passed by the legislature of 1855, and in a single section it provided that corporations for the purpose indicated in the title might be formed under the provisions of an act "to authorize the formation of corporations for mining, smelting or manufacturing iron, copper, mineral coal, silver or other ores or minerals, and for other manufacturing purposes," approved February 5, 1853, and should have and possess all the rights, and be subject to all the liabilities provided in said act and the acts amendatory thereof. A second section was subsequently added making special provision for corporate debts and obligations, and the acquisition, control and disposition of real and personal property, but they are not material here. The first section was left to stand as first enacted, and the only method provided for the incorporation of building and leasing companies was by the reference made to the previous act, which had in view organizations for purposes essentially different. This was at least awkward, especially as some of the rights and liabilities given and provided for by the mining and manufacturing incorporations act were from their nature peculiar to the kinds of business those incorporations were to engage in, and to the reports they were required to make thereof; so that it could not be strictly true that the building and leasing corporations would possess all the rights and be subject to all the liabilities of the corporations after the model of which they were to be formed.

The act by permission of which the defendants claim to be incorporated was passed in 1869, and by its first section provides that "corporations for building and savings associations may be formed and incorporated under the provisions" of the act of 1855, the substance of which has been already given. Now, as it was impossible to organize under an act the whole purpose of which was to give permission to find in another act the outline of an organization which it did not itself provide, the reason for referring to the act of 1855 is not very manifest. Had there been any desire or design on the part of the draftsman of the act of 1869, to avoid presenting to the mind of the legislature the incongruities that must result from the attempt to organize corporations of a nature essentially different under the same enabling statute, the wording of the act was well adapted to that end, for while it mentions building and leasing associations as those upon the model of which the corporations for building and savings purposes,--which might well be supposed akin to them,--were to be formed, mining and manufacturing corporations, which were to be the real model, were not once named, nor was the act referred to under which they are formed, except blindly by its number as a chapter of the compiled laws. But, whatever the real purpose, it cannot fail to...