Smith v. Mechanics' Building & Loan Ass'n

PeaesoN, C. J.

The complaint alleges, among other things, that the mortgage deed secures the re-payment of $1,366, the sum advanced to plaintiff for the redemption of his stock. The answer admits this fact, and admits farther, that it was a violation of the charter and by-laws of the Association to include this sum in the mortgage. It then alleges that the mortgage was so drawn by the mistake of the -draftsman, and prays to haveffhe deed reformed by making it conform to the constitution and by-laws.

His Honor, without disposing of the question of reforming the mortgage deed, refuses to grant the injunction. In other words, he vacates the restraining order, and permits the defendant to sell under a deed which, by the admission of the defendant, covers too much, and is in violation of the charter and by-laws of the Association.

There is error. Order reversed and cause remanded, to the end that an injunction issue, as prayed for in the complaint, and continued until further order, and to the end that the pleadings may be so amended as to present an issue of fact to be tried by a jury, under instructions by the Court, to the effect following :

“ Was the mortgage deed mentioned in the pleadings drafted so as to include the sum paid to the plaintiff by the defendant, as the price of the redemption of his stock, by accident, mistake or by ignorance of the draftsman ? Or, was the mortgage deed, mentioned in the pleadings, drafted so as to include the sum paid by the plaintiff to the defendant as the price of the redemption of his stock, by design and on purpose and with the privity and knowledge of the defendant, and with a view to oppression and wrongful exaction ?”

A verdict upon this issue Will enable the Court to see whether the mortgage deed comes under the rules in regard to'the correction and reforming deeds, or-under the rules in regard to declaring deeds vojd for fraud and circumvention.

The case may thus be disposed of upon the matter of the mortgage deed; but should the verdict be that the deed was made to include too much, by accident, mistake or the ignorance of the draftsman, and the deed be reformed, so as to conform to the charter and by-laws, then the general question, which was argued with much earnestness: Are these Associations a swindle and a mean's of deluding and cheating ignorant mechanics, which the Courts have power to suppress, as contended for by plaintiff’s counsel, or are these Associations hona fide, and a means of enabling poor mechanics to borrow money and pay it back by small monthly instalments, so as to ease and favor him, by fitting the payment of interest and dues' to what may suit his convenience? And, in the second place, suppose the mechanic comes in, according to the charter and by-laws, and indirectly borrows money from the Association at the rate of 25 per centum, must he abide the consequences* or, in the face of the charter of the Association, have the Courts power to interfere ?

Upon this goneral question we are not now at liberty to express an opinion.

Error. Let this opinion bo certified. Remanded.

Pee CueiaM.

Order reversed.