State Mut. Bldg. & Loan Ass'n v. Batterson
| Decision Date | 15 November 1904 |
| Parties | STATE MUT. BUILDING & LOAN ASS'N v. BATTERSON et al. |
| Court | New Jersey Supreme Court |
Appeal from Court of Chancery.
Suit by the State Mutual Building & Loan Association against James G. Batterson and another. From a decree for plaintiff, defendants appeal. Reversed.
See 56 Atl. 703.
Francis Scott, for appellants.
E. A. Armstrong, for respondent.
The appeal in this case is from a decree of foreclosure upon a mortgage given by the appellants, Batterson and Chittick, to the respondent. The grounds of appeal, as set forth in the appellants' petition, are that the mortgage is a nullity because the appellant Batterson had no title to or interest in the mortgaged premises at the time of the execution of the instrument; that it was void on the further ground that neither of the appellants were members of the respondent association at the time of the making of the loan to secure the payment of which the mortgage was given, and the act of the association in loaning the money was therefore ultra vires; that no loan was in fact made to them by the association; and that the amount found to be due by the decree was excessive.
Our examination of the testimony in the cause satisfies us that the appeal is frivolous, except to the extent that it is directed at the amount decreed to be due upon the mortgage. To that extent it is meritorious.
The situation disclosed by the proofs is this: The appellants desired to obtain from the respondent a loan of $18,000. To accomplish this, it was necessary that one of them should become a member of the association, and so Batterson subscribed for 180 shares of its stock. The association thereupon loaned them the $18,000, taking as security for its repayment the bond of Batterson in the penal sum of $36,000, conditioned for the payment of the sum loaned, "together with interest thereon at the rate of six per centum per annum, and such premiums, fines and charges as shall accrue thereon," and also the mortgage in suit. This latter instrument after setting out the giving of the bond, and its condition, recites that it (the mortgage) is given "for the better securing the payment of the aforesaid debt or principal sum of $18,000 with interest as aforesaid, unto the said party of the second part."
The amount found to be due by the final decree was $25,200.12, made up as follows:
Principal
$18,000 00
Interest
3.369 00
Premiums
3.369 00
Dues
3.420 00
Fines
1,015 80...
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