Savage v. Evanston Sav. & Loan Ass'n

• Citation: 81 N.E. 1062,228 Ill. 431
• Court: Supreme Court of Illinois
• Decision Date: 09 October 1907
• Parties: SAVAGE et al. v. EVANSTON SAVINGS & LOAN ASS'N.

228 Ill. 431

81 N.E. 1062

SAVAGE et al.

v.EVANSTON SAVINGS & LOAN ASS'N.

Supreme Court of Illinois.

June 19, 1907.

Rehearing Denied Oct. 9, 1907.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Du Page County; H. B. Willis, Judge.

Bill by the Evanston Savings & Loan Association against Ella M. Savage, Frank M. Savage, and others. From a decree of the Appellate Court for the Second District, affirming a decree of the circuit court for complainant, Emma M. and Frank M. Savage appeal. Affirmed.

This is a bill to foreclose a mortgage, given to secure a $10,000 loan, to the Evanston Savings & Loan Association. It appears from the record that on the 10th day of January, 1896, Henry G. Savage borrowed $10,000 from the association; the same being evidenced by his bond of that date and secured by an assignment of 100 shares of the stock of said association and by a mortgage on certain real estate in Du Page county. The bond stipulated, among other things, that Savage was to pay the sum of $50 per month, together with interest on the $10,000 at the rate of 7 per cent. per annum, payable in monthly installments of $58.33 1/3 per month; said payments of principal and interest to continue until the said sum of $10,000 was fully paid, or until each share of said stock attained the value of $100. A number of payments were made on said loan. Savage died, leaving his widow, Ella M. Savage, executrix of his last will and testament, and leaving also said widow and a son, Frank M. Savage, as his only heirs at law. Effie M. Parker and Henry M. Parker were made parties defendant; their interest being as purchasers of the mortgaged property subsequent to the death of Henry G. Savage.

Ella M. Savage and Frank M. Savage filed their answer, in which they allege that the loan evidenced by said bond was not made in accordance with the statutes of the state of Illinois in reference to building and loan associations, requiring money in the treasury to be offered as a loan to its stockholders and sold to the highest bidder; that at the time the loan was made there was no competitive bidding in said open meeting, but that said loan was made to Henry G. Savage under a written contract between the parties, without any competitive bidding whatever on his part; that the complainant corporation had no by-law which dispensed with the offering of its money for competitive bidding in accordance with the statutes of the state of Illinois in reference to homestead loan associations. The said answer further alleged that said bond was usurious, in that it provided for 7 per cent. interest on the principal of said bond, $10,000, at the rate of $58.33 1/3 per month, until the said bond was fully paid by monthly payments of $50 each upon the principal; that when any monthly payment was made on the principal of said bond, in accordance with the terms and conditions of said bond, interest on the entire sum of $10,000, at the rate of $58.33, became immediately more than 7 per cent. per annum interest on the money then owed by the said Henry G. Savage or his heirs as principal and which was a greater rate of interest than is allowed by the statutes, the highest rate allowed being 7 per cent. per annum. The said answer further alleged that there had been paid prior to the commencement of this suit, on said bond, the sum of $3,969.92 on account of the principal; that there had been paid on account of interest $3,900, making a total of $7,869.92 which had been paid on account of said bond, and which entire sum should, in accordance with the statutes, be credited upon said bond, leaving a balance then due of $2,530.08, which sum was tendered to the association before the bill was filed, and the tender has been kept good. The defendants Effie M. Parker and Henry M. Parker filed a general answer to the bill of complaint, in which they called for strict proof.

To these answers replications were filed. The case was referred to a special master, who reported that because of the usury there was due on said bond on April 26, 1902, but $2,530.08; that on that date the defendants Ella M. and Frank M. Savage made a legal tender of that sum to the complainants, which tender was refused, and that said tender has been kept good by the defendants ever since; that the equities are with the defendants, etc. Complainants excepted to the report of said master, which exceptions were sustained by the court, and a decree entered in favor of the complainants for $6,923.50 and $50 for solicitor's fees. The cause was thereupon taken to the Appellate Court for the Second District on appeal by Ella M. Savage and Frank M. Savage, and the decree was...