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ment over territory contiguous to a town or lines of a town or city, in cases where “the city by extending its limits, besides that of legitimate object of improving the town” has taxation. This might be done in any case in been “palpably perverted to the unauthorized anticipation of the future growth of the town purpose only of lessening the burden of taxaor city, for the purposes of police protection, tion on the inhabitants, who will not be otherand the like. Such an exercise of legislative wise benefited by the extension.”. Swift v. power was not violative of the constitutional Newport, supra. In the case of Elkton Irusguaranty of private property to the owners, tees v. Gill, 94 Ky. 138, following Cheaney v. because the land was still their own, and could Hooser, supra, and Maltus v. Shields, 2 Met. not be taken or appropriated for any public (Ky.) 553, the doctrine is stated in the followuse, such as for streets or alleys, without their ing language: "The protection afforded to, consent, or without just compensation there and advantages received by, the citizen from a for. Cheaney v. Hooser, 9 B. Mon. 330; Swift municipal government are, in the meaning of v. Neroport, 7 Bush, 37. It will be found on the Constitution, just compensation for taxainvestigation, we think, that in most of the tion imposed in order to maintain it. And lostates the courts will not interfere in such cases cal laxation authorized by law cannot be to relieve property owners from taxation by deemed taking private property without just the municipal authorities, because municipal compensation, unless it is palpable that pergovernment being an important part of the sons, or their property, are subjected to such governmental machinery of the state, it is the burden for benefit of others for purposes in peculiar province of the legislative department which they have no interest and to which they

- the lawmaking power-to define or provide are therefore not justly bound to contribute." a method of defining the limits of municipal in that case a parcel of 6 acres of land, emcorporations, and to clothe them with the bracing the residence and lawn of the owner, powers of local government, and that the pro- ! which was within the limits of the town, the priety of legislative action in this regard may | the land being a part of a tract containing 46 not be questioned. In this state, however, as acres, which was used for agricultural purwell as in several other states, it has long been poses, the part including the residence being the established doctrine that the courts will adjacent to two streets of the town, was beld relieve against the burden of municipal taxa. to be subject to taxation by the town. In Maltion, following the extension of the boundarytus v. Shields it was held that a lot of about 9 departed from, and the court held that except in the public indicate that sucb is necessary, there is cases where the sole object of the extension of the constitutional power to so enact and tax for such limits was to increase the revenue of the city, purposes the real estate of the people wbether the which was not passed upon, the question of the lands are large or small. There is no power in the extension of the limits of the city was for the legis courts to control the action of the legislature when lature, and that when the limits were extended the the power to tax is conferred in good faith to uptaxation upon all the property within the extended bold local government and give police regulations limits should be uniform according to its value. to the people, and not merely to impress taxable

The courts will interfere to restrain municipal property for revenue purposes in order to lighten taxation where the owner of the property cannot the burdens of others. Arbegust v. Louisville, 2 be benefited in a municipal point of view. Lang-Bush, 271. worthy v. Dubuque, 16 Iowa, 271.

The Federal courts are bound by the decisions of The courts will limit the line of municipal taxa- the state upon the question as to restraining col. tion to the line wbere it ceases to be for purposes lection of taxes upon farm lands within the city beneficial to the proprietor in a municipal point of limits for city purposes. Oliver v. Omaba, 3 Dill. view, Fulton v. Davenport, 17 Iowa, 404.

368; Kountze v. Omaha, 5 Dill. 443. In order to justify interference by the court there must be such a flagrant case as authorizes the conclusion at first blush that the taxation is

VI. What property is taxable. a mere taking of private property for public use. Each case must be determined upon its own peSharp v. Dunavan, 17 B. Mon. 223.

culiar facts. Brooks v. Polk County, 52 Iowa, 460. In Re Little Meadows, 35 Pa.335, where an attempt If the land is so situated that the city cannot was made to incorporate a village with a great deal grade and improve streets, erect its public works, of farm land within its limits, the court says it is or extend public protection to its citizens proper quite unjust to give a village such an extension, i without at tbe same time giving the owner of the for this puts all the farm lands around it in the land the full benefit and greatly enhancing the power of the real villagers to tax them as they value of his property, the power to tax arises. Ful. please and expend all the tax for themselves. But ton v. Davenport, 17 Iowa, 404; Davis v. Dubuque, the question in the case was the interpretation of 20 Iowa, 458. the power given by the legislature, and not the A lot which is benefited by the improvements question of the power of the legislature.

and current expenditures, as well as permanently The wisdom or discretion of the exercise of the enbanced in value, is liable to taxation for mupower of taxation cannot be interfered with by the nicipal purposes; but it is not liable to taxation if it courts unless it has been so grossly perverted as to is not accessible by any street leading to tbe busibe a manifest violation of the Constitution. Hew- ness part of the city and has no additions or imitt's Appeal, 88 Pa. 55.

provements near it, while it is surrounded on all If the statute provides that the city council shall sides by land used exclusively for agricultural pur. discriminate between agricultural lands and city poses. O'Hare v. Dubuque, 22 Iowa, 144. lands the discretion is committed to them to de- In determining whether lands of a rural charactermine which shall be taxed as city lands, and the ter situated within the limits of a city are benefited court will not interfere with that discretion unless by the municipal government, the purpose for it is abused. Erie v. Reed, 113 Pa. 468.

which they are held is a controlling fact to be conWhen in the judgment of the legislature the in- sidered. If held as city property to be put upon terest of a suburban population demands local reg- the market whenever they reach a value corre ulations, and the peace, tranquillity, and order of Isponding to the view of the owner, they ought to

acres in the town of West Covington, upon extending the boundaries of the town of Hopwhich the owner resided, and a part of which kinsville. Another case—that of Stites v. Dunwas in cultivation, and part containing ever- navan (MSS. Opin.) - originated under the greens and shrubs and a large number of fruit same act, in which it was decided that the land trees, was constitutionally subject to taxation of the owner that was brought within the limfor municipal purposes. In the case of Sharp its of the town by the said act, containing 22 v. Dunavan, 17 B. Mon. 223, it was held that acres, and used as a residence, and for pasturwhere a town is extended by improvement, so ing and other agricultural purposes, was liable as to give those living adjacent to the town to municipal taxation. The foregoing referboundary all the advantages which the citi- ences are sufficient to show the doctrine that zeps enjoy from the local government of the has prevailed in this state upon this question, town, the legislature had the constitutional and the manner in which it has been applied. power to extend the limits of the town and Applying it to these two cases, we find that the subject the owners of the property within the facts exhibited by the records before us, fairly extension to taxation for town purposes, and viewed, do not make out a case that would tbat the legislative discretion in the location of authorize the interference of the court in bethe lines of the extension could not be ques- half of either appellant Briggs or appellee tioned or controlled by the courts. In that Beall. Considering the character and location case 34 acres of land, including the residence of their property, its proximity to the two railof the owner, being a part of a tract of 140 roads, their depots and shops, running through acres which were used for agricultural pur- and located in the town, and to the business poses only, were brought within the limits of portion of the town, the actual and prospective the town by the legislative act. The owner's growth of the town, and the propriety, under residence was situated 25 poles from the existing conditions, of extending the police juoriginal boundary of the town, and 155 risdiction of the town over the localitv, and the poles from the center of the business part of benefits and advantages necessarily afforded to the town, and near enough to enjoy the ad- and enjoyed by them, by reason of the very vantages of schools, churches, and the busi. existence and presence of the municipal govness of the town. This case and that of Chea- ernment, in common with other citizens and ney v. Hooser arose under the act of 1846, property owners on whom the burden of main

be taxed as other city property. Durant v. Kauff- The mere fact that the land is devoted to agriculman, 34 Iowa, 194.

tural purposes is not sufficient to exempt it from The mere fact that a city residence consists of 20 taxation. The question to be determined is whether acres does not exempt it from city taxation if it is or not the actual condition of the town and its used for residence, lawns, orchards, groves, etc., growth authorized it to include the land within its which make it a fine piece of residence property. bounds. Maltus v. Shields, 2 Met. (Ky.) 553. Ibid.

In order to render land liable to city taxation, If the lands are enhanced in value by the prox- there must be, not only benefits actual or preimity of the settled portion of the city and the sumed, but also a town or city population on or prospect of its soon becoming good city property near the land creating a necessity, or at least renit is liable to city taxation. Brooks v. Polk County, dering it not unreasonable that the municipal gov52 Iowa, 460.

ernment should be extended over it. Courtney v. In order to exempt land within a city from Louisville, 12 Bush, 419. municipal taxation it is not sufficient merely to A tract of 15 acres of which 7 or 8 are used for show that it is used for agricultural purposes, but pasture, 1 for garden, and the remainder for resiit must be shown that it is used exclusively for dence, barn, etc., is not land used exclusively for such purposes, and that it does not derive sucb agricultural purposes within a statute exempting benefit from the expenditure of city taxes as to such land from taxation. Simms v. Paris (Ky.) 1 make it taxable for city purposes. Tubbesing v. S. W. 543. Burlington, 68 Iowa, 691.

The mere fact that the land is used exclusively A tract of 18 acres of land occupied as a home for garden purposes is not sufficient to exempt it if stead surrounded on all sides by platted land and it enjoys all the advantages which the corporation having all the benefits of light, water, streets, and affords others. Eifert v. Central Covington, 91 Ky, fire protection common to that portion of the city 194. is subject to municipal taxation, although it is not Where the complainant kept boarders who subdivided by streets or alleys nor platted. Per-worked in the town, and stores had been erected kins v. Burlington, 77 Iowa, 553.

near his property, he could not enjoin the collecIn Ford v. North Des Moines, 80 Iowa, 626, the tion of the tax on the ground that the limits of the claim was made that there was an unreasonable town were extended solely to increase the revenue extension of the municipal boundaries thereby of the town at his expense. Beattyville v. Daniels, making the subjecting of the property to taxation 15 Ky. L. Rep. 793. for abutting streets unconstitutional, but the Where the proportion of tbe complainant's land court held that the mere fact that the property was wbicb is within the town limits is only 6 acres, and he overflowed by high water of the river was no reason has sold a portion of his tract at an enhanced value why it should not be annexed to the municipality, because of the proximity of the town, while the

Under a statute exempting land in good faith for streets are laid out past his property and buildagricultural purposes land held for speculation is ings surround it, be cannot complain if he is taxed not exempt, although it is at the time used for for municipal purposes. Elkton Trustees v. Gill, agricultural purposes and is not laid off into lots or 94 Ky. 138. blocks. Farwell v. Des Moines Brick Mfg. Co. In State, Paulison, v. Taylor, 35 N. J. L. 184, the (Iowa) 66 N. W.176.

court asks, Can a man keep a farm or a large garden Land abutting on the main street of a city is in the midst of a city or within city limits and claim taxable, although it contains 13 acres, has never that it shall be valued only according to the uses to been platted in lots and blocks, and a part of it has which he applies it without regard to its actual always been used for agricultural purposes. Men market value ? denball v. Burton, 42 Kan, 570.

A statute requiring farm land to be assessed by taiping it had been cast, it was, in our opinion, other taxpayers, by exteoding the boundaries. reasonable and just to require them and their of the town; and when at last they did attempt property to bear a due proportion of the bur- to subject this property to taxation it was un dep. By forbearing for so many years to as- der circumstances and conditions that showed sess their property, it is manifest that the mu that these parties were to be equal sharers with nicipal authorities were not seeking to foster every other property owner in the town of the private interests, or to lighten the burden of benefits of the municipal government.

the acre is no longer applicable if the land hastion for city purposes. Deeds v. Sanborn, 26 Iowa, . been laid off into lots and blocks. State, Combes, 419; Deiman v. Fort Madison, 30 Iowa, 542. v. Vanhorne, 39 N. J. L. 444. A statute exempting property used for farm

VII. Power of municipality to erempt. purposes applies only to land used for the cultiva- The municipality cannot exempt agricultural tion of crops or the pasturage of stock, and not to property from taxation if the power is not condwelling houses and their appurtenances. Carriger ferred by the legislature. Third Municipality v. v. Morristown, 1 Lea, 116.

Ursuline Nuns, 2 La. Ann. 611. If the streets are extended to the complainant's property, and he is afforded police protection, be is

VIII. Original incorporation. subject to municipal taxation. Cook v. Crandall, 7

The fact that the land is included within the muUtab, 344.

nicipality at its original incorporation, and not by A lot not used for agricultural purposes, and extension of its limits, does not change the rule as. situated so near the city as to be protected and to exemption from liability. Buell v. Ball, 20 lowa, benefited by the municipal government, is not ex- 282; Deeds v. Sanborn, 22 Iowa, 214. empt from city taxation. Butler v. Muscatine, 11

IX. Assessments.
Towa, 433; Hershey v. Muscatine, 22 Iowa, 184.
Land adapted to city uses, deriving increased

The principles applying to assessments are somevalue from the proximity of the city and having a

what different from those applying to taxation in city population near it rendering the city govern- general, and are set out in notes to Re Madera Irment over it reasonable, is liable to city taxation. rig. Dist. Bonds (Cal.) 14 L. R. A. 755; Davis v. LitchBut the court says undoubtedly land held for and field (III.) 21 L. R. A. 563; and Raleigh v. Peace adapted to agricultural purposes only cannot be {N. C.) 17 L. R. A. 330. But for the purpose of showsubjected to ordinary municipal taxation simply ing how the conflict of decision runs into even this. because of proximity to a city, although this fact branch of the subject, attention is called to the folmay afford extra facilities for reaching the city, lowing cases: and render it more valuable; por merely because

In Pennsylvania, where the rule of absolute of improvements constructed by the municipality. power in the legislature is applied to other cases, it Torbitt v. Louisville (Ky.) 4 S. W. 345.

is held that farm lands cannot be charged with theIn a territory the district to be taxed for munic- expenses of improving the streets running through ipal purposes must be confined to the limits indi- them. Scranton v. Pennsylvania Coal Co. 105 Pa. cated by the buildings or public improvements of 445. the city, and such outside district as is so near that · On the other side, Maryland holds that an assessit is probable that the protection of the police will ment for henefits may be authorized upon property be extended to it or that the benefits of the im- outside of city limits. There is a strong distinction provements made with municipal taxes will be between such an assessment and regular city taxes. received by its residents and property. People v. Brooks v. Baltimore, 48 Md. 265. Daniels, 6 Utah, 288, 5 L. R. A. 444.

So, special paying and curbing assessments are If the property cannot be regarded as town lots, not taxes for "any city purpose" within the meanbut is used for agricultural purposes alone, while ing of the lowa exemption law. Farwell v. Des the city improvements do not extend near it and Moines Brick Mfg. Co. (Iowa) 66 N. W. 176. there are only a few houses in its vicinity, it can

So, in Indiana an exemption of agricultural propnot be subjected to municipal taxation. Coving- erty from general city taxation does not apply to ton v. Arthur, 12 Ky. L. Rep. 163.

assessments for improvements. Kalbrier v. LeonWhere the land is unplatted and is used for agri- ard, 34 Ind. 497. cultural purposes, and is distinct from the platted Agricultural land witbin a city is subject to local portion of the town and from streets and lights, it assessments for street improvement. Taber v.. is exempt, although the dwelling was at one time Grafmiller, 109 Ind. 206. rented to a person wbo did not occupy it for agri- If the property is within the limits of the town, cultural purposes. Taylor v. Waverly (Iowa) 63 N. and abuts on a street upon each side of which lots are W. 347.

platted, upon many of which lots houses are built, Thirteen acres of land owned by a merchant so that the construction of a highway is reasonable, doing business within the city, 1 acre of which he the abutting lots may be assessed for the work, alhas improved and uses for a residence, làwn, and though a portion of the lots adjoin farm property outbuildings, is agricultural if the remainder of in the rear and are not built upon. Hood v. Lebthe tract is used for cultivation and pasture. anon, 12 Ky. L. Rep. 813. Tubbesing v. Burlington, 68 Iowa, 691. In a petition to sever certain land from a munic

X. Method of raising question. ipality on the ground that it was agricultural If the property has been unlawfully annexed toland, the court says it is conceded that it is not lia- the city the collection of a tax thereon may be enble for municipal taxation. It is further said cities Joined. Peru v. Bearss, 55 Iod. 576. ought not to be permitted to retain lands within The question of the validity of the tax cannot be their limits which are not needed for city purposes raised by a suit against the collector for levying and which are not benefited by being within the on and selling property for the nonpayment of the corporation, against the will of the owners, for the tax. Walden v. Dudley, 49 Mo. 421. mere purpose of deriving revenue therefrom. The power of a city to tax farm land cannot be Evans v. Council Bluffs, 65 Iowa, 238.

called in question in an injunction suit by the Land used for agricultural purposes, remote owner to restrain the execution of an order annex. from the city proper and not near to any street or ing the property to the city. Stilz v. Indianapolis.. rich has been worked, is not liable to taxa-155 Ind. 515.

H. P. F.

The taxes involved in these cases having, empted by that instrument is required to be been levied and assessed under laws existing assessed for taxation at its fair cash value, before the passage of the act of July 3, 1893. estimated at the price it would bring at a fair providing for the government of towns of the voluntary sale." This plain requirement will fifth class, it is not necesssary to pass upon prevent exorbitant and arbitrary valuations, any question that might be raised under any and placing more than an equal and just proof the provisions of that act bearing upon the portion of the public burdeos ou any taxpayer. question of municipal taxation. Nor is it nec- Finding no error in the judgment in the case essary for us to determine the effect of the of Briggs, trustee, the judgment is affirmed. provisions of our present Constitution requir- But, for the reasons given, the judgment in the ing that taxes shall be uniform upon all prop. case of appellee Beall is reversed. It is conceded erty subject to taxation within the territorial by counsel for the town that only so much of limits of the authority levying the tax," and his property as lies between the Owensboro & prohibiting the exemption from taxation of any Nashville Railroad and Green ville street or property except such as is exempted by the Con- pike, ought to be subjected to taxation in this stitution. Copeland v. St. Joseph, 128 Mo. 417. proceeding, and the cause is accordingly reIt is only necessary to say that under the pro- manded, with directions to so adjudge. visions of the Constitution all property not ex

TENNESSEE SUPREME COURT.

0.

Frank H. POST, Appt.,

Court for Knox County in a proceeding to

wind up the affairs of an insolvent building MECHANICS' BUILDING & LOAN AS- association. Modified. SOCIATION

The facts are stated in the opinion.

Messrs, Green & Shields and Webb & (........ Teno..........)

McClung, for appellants, Post and advance

payment stockholders: 1. Loans at fixed premiums without free These contracts have in them ail of the eleand competitive bidding, as required by the ments of mutuality and equality of benefits Tennessee statutes (Mill. & V. Code, $ 1751) can which take the contracts out of the usury not be lawfully made by a building and loan as- laws and make them valid as building and sociation, but are usurious if the premium is

loan contracts. more than lawful interest. 2. Payments of dues upon stock in a

Patterson v. Workingmen's Bldg. & L. A880. building and loan association cannot | 14 Lea, 693. be credited upon & usurious loan to a stock- The construction of a written contract is a holder in winding up the affairs when the asso- | matter of law which this court determines ciation is insolvent, since such credit would re- for itself without embarrassment from the lieve the borrowing shareholder from his share bolding of the court of chancery appeals. of the losses and throw them all on the nonbor- Toomey v. Atyoe, 95 Tenn. 374. rowing stockholders.

Borrowing stockholders are estopped to 3. Payment of dues in advance under deny the validity of their subscriptions for

an agreement with a building and loan stock or to dispute that they are stock bolders association for interest upon the advances in said association. until they are absorbed by dues does not entitle Morawetz, Priv. Corp. 2d ed. S$ 108, 116: the stookholder in case of the insolvency of the Morrow v. Nashville Iron, 8. & C. Co. 87 association to be treated as a creditor with the Tenn. 262, 3 L. R. A. 37; Cartwright v. Dickright to repayment of his advances with interest, inson, 88 Tenn. 488, 7 L. R. A. 706; Endlich. -especially when the agreement for interest | Bldg. Asso. $$ 60, 61. thereon was not warranted by the charter.

The borrower's relation to the association as 4. A mistaken declaration of the ma- borrower is separate and distinct from his returity of stock by a building and loan asso- latior to it as a stockholder. ciation when the stock is in fact not matured

Endlich, Bldg. Asso. S$ 448, 477, 478. will not make the stockholder a creditor or put him in the position of a holder of matured stock

The payment of dues upon stock are not in subsequently winding up the affairs of the as. payments to the mortgage debt, and do not sociation when insolvent.

ipso facto work an extinguishment of so much

of the mortgage, and hence, they are not to be (October 14, 1896.)

regarded as partial payments.

Endlich, Bldg. Asso. 2d ed. $ 477; Rogers y. a decree of Court

The usury in the loan would only entitle the peals modifying a decree of the Chancery | borrower to have the contract of loan purged of

APPEATeeb or complainant and bothers from Harge92 Tennis

NOTE.On the question of the right to apply | niston Loan & T. Co. (Ala.) 29 L. R. A. 120, note: payments made on stock in a building and loan as- Buist v. Bryan (S. C.) 29 L. R. A. 127; Randall v. sociation as credits on a mortgage given by the National Bldg., L. & P. Union (Neb.) 29 L. R. A. 138. stockholder, see Southern Bldg. & L. Asso. v. An

Bates v.

its usury, and could in no way affect the valid- The statutes chartering building and loan ity of the borrower's stock in the association. associations must be strictly complied with or

The insolvency of an association and its in the loan will be held usurious. ability to carry out its contract with the bor

People's Sav. & L. As8o. 42 Ohio St. rower work the same result.

655; Reede v. Ladies' Bldg. A880. (Ark.) 18 L. R. Rogers v. Hargo, 92 Tenn. 38.

A. 134, note. Mr. Julius Parker, for S. V. Armstrong: If usurious then it must be governed by tbe

The objection to the validity of the action of rules governing other usurious loans, -the the association in declaring the stock matured borrower charged with the sum actually reresolves itself into an insistance that the declar ceived and credited with all sums paid, whether ation of dividends was erroneous and therefore interest, dues, or fines. illegal.

Williar v. Baltimore Butchers' Loan & A. The capital stock of a corporation is a trust Asso. 45 Md. 547; Kupfert v. Guttenberg Bldg. fund for the payment of creditors. This Asso. 30 Pa. 471; Southern Bldg & L. As8o. v. lies at the basis of the doctrineof the illegality of Anniston Loan & T. Co. 101 Ala. 582, 29 L. R. dividends which encroach on the capital stock. A. 120. 2 Thomp. Corp. § 2136.

In no event can appellants be required to pay In the case at bar there are no creditors ask-back on their loans more than the amounts they ing the court to enforce this doctrine intended actually received less the sums they paid alone for their benefit.

thereon as interest,credited as partial payments, Upon the declaration of a dividend by direc- they sharing losses with other stockholders tors it becomes eo instanti the property of the upon the sums paid in by them as dues. sbarebolders, and can be recovered by them as Rogers v. Hargo, 92 Tenn. 35. a debt notwithstanding the intervention of a The investing stockholders who had paid in condition of insolvency.

advance of March 27, 1895, are not preferred Cook, Stock & Stockholders, 2d ed. $ 543. creditors, are simply stockholders, and have

When one paying money under mistake has that much more of capital invested in the deprived the party paid of legal rights, or in corporation. fluenced him to waive or lose them, the plain- The facts found by the appellate court tiff will be estopped to show his mistake and stamp the loans as usurious. to recover the payment so made.

Reece v. Ladies' Bldg. A880, supra; Endlich, Guild v. Baldridge, 2 Swan, 295.

Bldg. Asso. 1st ed. SS 353, 355, 356; 2d ed. It is not an answer to this contention to say | $ 403; Martin v. Nashville Bldg. A880. 2 Coldw. that the directors who made the mistake were 418. the common agents of all the stockholders in. Whenever a loan is found to be usurious then cluding this appellant. As to dividends the the borrowers have the right to bave every corporation and the stockholder to wbom payment made by them to the creditor credited such dividend was declared stand at arm's on the loan. length and in opposition.

Martin v. Nashville Bldg. A880. and Southern Cook, Stock & Stockholders, 2d ed. SS 543 Bldg. & L. Asso. v. Anniston Loan & T. Co.

(Ala.) 29 L. R. A. 120, note, and authorities The relation between the withdrawing there cited; Endlich, Bldg. Asso. Ist ed. $ 496. stockholder whose withdrawal notice has ma- The case at bar conclusively entitles the tured, and the corporation, is that of creditor borrower to a credit for all of his payments. and debtor.

The association being the creditor has received Endlich, Bldg. Asso. $ 136.

from the borrower so much money as dues on The intervention of a condition of known the stock held by it as collateral. Where a insolvency between the creation of this rela- creditor making å usurious loan and taking tion and the withdrawing stockholder's getting collateral from his debtor receives and collects his money does not change his relation back on the collateral money he is clearly chargeable again to that of stockholder, and in wind with tbe collections on collateral. ing up the insolvent association the withdraw- Endlich, Bldg. Asso. 2d ed. § 477; Lord v. ing stockholder wbose withdrawal notice bas Ocean Bank, 20 Pa. 386, 59 Am. Dec. 728. matured is entitled to be paid in priority to If the transaction is not brought within the other stockholders.

provisions of the acts governing loan associaE:dlich, Bldg. Asso. $ 486.

tions it must be governed by the rules governThe right of the stockholder who gives ing other cases of mortgagor and mortgagee. notice of withdrawal in accordance with the Williar v. Baltimore Butchers' Loan & A. by-laws and whose notice under those by-laws Asso. 45 Md. 547. bas matured is prior to that of general stock- Even where the borrowing stockholder is in holders. The ground for this holding is that default and the association seeks to enforce its this is the contract method of terminating the mortgage against him he is entitled to have relationship of stockholder and creating the credited on his debt the amount without interrelationship of creditor. That reason applies est he has paid on his stock. with its full force to this case, although the in- 2 Endlich, Bldg. Asso. SS 149, 482. itiative step here was taken by the corporation Messrs. Henderson, Jourolmon, Welck. and only assented to by the stockholder. er, & Hudson, and Cormick, Henderson,

Messrs. Lucky, Sanford, & Tyson, for & Sansom for interveners. Curtis, Armstrong, Condon, and Hunt:

Every esssential fact to constitute usury Wilkes, J., delivered the opinion of the here exists.

court: Bank of Nevrport v. Cook (Ark.) 46 Am. St. This is a bill filed to wind up the defendant Rep. 178, note.

company as an insolvent corporation, and to

et seq.

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