Pioneer Sav. & Loan Co. v. Cannon

• Decision Date: 10 May 1896
• Citation: 36 S.W. 386,96 Tenn. 599
• Parties: PIONEER SAVINGS & LOAN CO. v. CANNON et ux.
• Court: Tennessee Supreme Court

36 S.W. 386

96 Tenn. 599

PIONEER SAVINGS & LOAN CO. v. CANNON et ux.

Supreme Court of Tennessee.

May 10, 1896

Appeal from chancery court, Shelley county; Sterling Pierson Chancellor.

Bill by the Pioneer Savings & Loan Company against H. E. Cannon and wife to recover possession of real estate. From a judgment in favor of complainant, defendants appeal. Affirmed.

F. P Paston, for appellants.

Malone & Malone and J. J. Du Bose, for appellee.

McALISTER J.

This is an action of ejectment to recover the possession of a tract of land comprising about 12 acres situated near Memphis. The complainant is a building and loan association incorporated under the laws of the state of Minnesota, with its office and principal place of business at Minneapolis, in said state. The record discloses that on July 25, 1890, the defendant H E. Cannon, a citizen of Memphis, made application to complainant association to purchase 26 shares of its stock of the par value of $2,600. This stock was accordingly issued, subject to the rules and regulations of the company. It further appears that on the 29th July, 1890, the defendant Cannon made application to said company to borrow the sum of $2,000. This application was forwarded to the home office of the company, at Minneapolis, and after some delay the application was granted. As evidence of this indebtedness, Cannon and wife, September 1, 1890, executed their joint note to said company for the sum of $2,000, payable 76 months after date. This note was dated and made payable at Minneapolis, and provided for the payment of 5 per cent. interest per annum, and 5 per cent. premium per annum, monthly, on or before the last Saturday of each month, and stipulating further that "any failure to pay interest or premium when due shall, at the election of the payee, make the principal, interest, and premium at once due." A provision of 10 per cent. attorney's fees was also embraced in the note, in the event default was made in the payment of the note. For the purpose of securing the payment of this note at maturity, Cannon and wife executed a trust deed to one R. J. Black, conveying the 12 acres in question, and providing for the payment of the interest and premium evidenced by the note. The trust deed further provided that, "in case of any failure or default on the part of the parties of the first part to keep and perform any of the covenants or agreements herein contained, such failure or default shall, at the option of the holder of said note, have the effect of at once maturing the whole indebtedness secured herein," etc. Cannon continued to pay his interest and premium until November 1, 1892, when he made default, and thereupon the company, in pursuance of the terms of the note, declared the whole indebtedness due, and directed a foreclosure of the deed of trust. The trustee, J. Black, after due advertisement, on January 27, 1894, offered the property for sale at public vendue, when the complainant, the Pioneer Savings & Loan Company, became the purchaser, at the price of $1,200. Cannon and wife having refused to vacate the property, the present bill was filed to recover the possession. The chancellor adjudged that the sale of the land to complainant was valid and communicated a good title, ordered a writ of possession to issue, and pronounced a personal decree against defendant for the sum of $1,134.98, the balance due on the note after crediting same by the amount bid at sale. Cannon appealed, and has assigned errors.

The first assignment of error is that complainant company is a nonresident corporation, and cannot maintain this action for the enforcement of property rights in this state, for the reason that at the time of these transactions it had not filed its charter with the secretary of state, and an abstract thereof in Shelby county, as required by the act of 1891. It is a sufficient answer to this assignment of error to say that the original loan from the company to Cannon was made September 1, 1890, and the trust deed to secure the loan was executed on the same day. This was prior to the passage of the act of 1891, and, of course, said contract is not affected by the provisions of the latter act. It is true, the foreclosure of the trust deed and the purchase of the...