dissenting.- — -It is not claimed in this case that the amount of the premium charged appellants by the decree is estimated upon an improper basis, but only that no part of the premium should have been charged.
In Towle v. American Building Loan & Inv. Society, 61 Fed. Rep. 446, it was held that the receiver of an insolvent building and loan association in adjusting settlement of mortgages given by members who had procured loans upon their stock, should charge them with the earned portion of the premium paid or agreed to be paid for the preference of loan. For reasons stated by Judge Grosscup in that case, and by Judge Green in Choisser v. Young, Receiver, 69 Ill. App. 252, and others which occur to 'me, I think upon principle the appellants in this case should not be relieved from payment of the earned portion of the premium bid by them for the preference of loan estimated upon an equitable basis. There are numerous decisions, however, *286which repudiate this rule and relieve the borrowing member from paying any part of the premium, though it seems if the assets are not sufficient to enable the receiver to deal with each stockholder and mortgagor on that basis without resulting in an unequal division of the assets among the stockholders, the other rule will be followed. Whitehead v. Commercial Building and Loan Association, 64 N. J. Eq. 24, — Atl. Rep. —. Numerically speaking the cases sustaining the rule that no part of the premium is to be charged, as against those sustaining the other rule, are as many to few- — the multitude to several. I have examined all the cases which I have been able to find in the library sustaining the majority rule, but none of them advance sufficient reasons to convince me of its correctness. I realize the responsibility resting upon a judge who refuses to follow what is termed the great weight of authority, but with my present convictions, formed after as mature consideration of the question as I am capable of giving it, I shall accept that responsibility in the present case. But, aside from this, other considerations lead me to the conclusion that in the present case the rule adopted by the Circuit Court should not be disturbed. The receiver was appointed October 15th, 1901, in a suit instituted against the building and loan association by Wm. W. Clyatt, Jr., the owner of five shares of series C of the capital stock of-the association, Harry B. Clarkson, the owner of twelve shares of series D upon which loans had been made, and Amedee E. Delouest, the owner of two shares of series B, on behalf of themselves and all others similarly situated and having like interests, who might join them as complainants under the rules of law and equity applicable to such cases. The decree appointing the receiver directed him in making settlement with borrowing stockholders to charg'e the earned premium, and it is admitted that the decree in this case charges earned premium in accordance with those directions. While appellants were not formally made parties to said suit, the agreed statement of facts shows that they “filed their protest *287in the suit of W. W. Clyatt, Jr., and others against the Ocala Building and Loan Association, prior to the Judge’s rendering the decree therein, the protest being directly and principally to the manner or plan of settlement as provided in said decree — the said defendants protesting against any part of the premiums being charged to the borrowers, and were represented by counsel, who made argument before the court in support of his protest against any part of the premiums being charged to the borrower in the general plan of settlement decreed by the court.”
In Black on Judgments, sec. 541, it is said: “Numerous cases show that a judgment may be binding as an estoppel upon a person who, although not nominally or formally a party to the action in which it was rendered, submitted his interest in the subject-matter of the litigation to the consideration of the court and invited its adjudication thereon.”
In Elizabethport Cordage Co. v. Whitlock, 37 Fla. 190, text 233, 20 South. Rep. 255, it is said: “It has been frequently held that if a party is interested in the subject-matter of a suit and does in fact appear and exercise the right of participation in the defense as if he were a technical party upon record, he can not afterwards be heard to contend that he is not bound and concluded by the judgment or decree to the same extent that he would have been if made a technical party to the proceeding.” This statement of the law, it will be noted, is taken almost literally from the decision in Parr v. State for the use of Cockey, 71 Md. 220, 17 Atl. Rep. 1020. I am unable to see why the decree appointing the receiver and instructing him as to settlements is not binding upon the appellants under these rules of law, as they were unquestionably interested both as stockholders and borrowers in the plan of settlement de-1 creed, and in winding up the affairs of the association. The' plan adopted by the court was one recommended by a majority of the stockholders before any suit was instituted, but which failed for want of the unanimous consent of all stockholders. The appellants were heard in opposition to *288this plan before it was decreed by the court, upon a protest filed by them, and they should be bound by that decision. I think the filing of the protest by parties interested and entitled to intervene, as these parties unquestionably were, the recognition by the court of their right to file such protest and to be heard thereon, and the presentation of such pro-; test by the parties and the hearing thereon constituted them real parties by intervention, though no formal order was asked or made admitting them as parties to the record. .
The court, after hearing argument upon such protest, overruled it by instructing the receiver to collect the earned premium, and I see no reason why an appeal could not have been taken from the decree, if the parties so desired. They undoubtedly had a right to present any pertinent evidence in support of their protest, and to control the proceeding so far as the protest was concerned, and I think they had the right to appeal from the decree if that be considered an essential element, in determining the question. The Circuit Court evidently regarded the Ottensosers as parties — not merely as members of the bar making suggestions — and they were given a hearing as such. They submitted their interest to the consideration of the court by a written paper filed in the suit, and invited the adjudication had thereon, which was rendered only after a hearing such as is usually given to parties entitled to be heard. The receiver has proceeded to administer the trust under the decree appointing him, and three dividends were declared before the final decree was rendered in this case. If other borrowing stockholders are required to settle in accordance with the instructions given the receiver, and I assume they are as dividends are being declared, it certainly would be inequitable to relieve the appellants from earned premium and at the same time permit them to share in the earned premiums paid by other borrowing stockholders. I think there is no error irf the decree in respect to those matters complained of, and that, therefore, it should be affirmed.