Homeseekers Loan Association v. Gleeson

McFARLAND, J.

his is an appeal by defendants from a judgment in favor of plaintiff for the foreclosure of a mortgage. On July 12, 1890, the defendants executed the mortgage in question to the plaintiff, to secure their promissory note of even date to plaintiff for three thousand six hundred dollars, due in six months, with stated interest, the whole principal and interest to become due, at plaintiff’s option, upon default of payment of any interest, and also to secure certain monthly installments on capital stock hereinafter mentioned. At the same time plaintiff issued to defendants certificates for eighteen shares of plaintiff’s capital stock, which were of the par value of two hundred dollars per share, and defendants promised in said mortgage to pay plaintiff each month one dollar per share until the shares were fully paid. Simultaneously with the execution of the note and mortgage, defendants pledged and delivered to plaintiff these eighteen shares of stock. Defendants did not pay any of the principal of the note, nor any of the interest after June, 1894, and they did not pay any of the monthly installments on the stock after the second Monday of June, 1894. The judgment is for the amount of the principal of the note and the unpaid interest thereon, and for the unpaid installments on the stock.

The main contentions of appellants, on the merits, are, that the amount paid by them as installments on the stock ($792) should have been credited on the mortgage debt, and that the court should not have given judgment for unpaid installments on the stock. The rights of one who occupies the dual relation of stockholder and borrower to a modern building and loan association are somewhat elaborately discussed in briefs, and a number of authorities cited. But the cases from other states relied on by appellants are mostly based on peculiar statutory provisions. We do not deem it necessary to follow the discussions of counsel on these points, because, since the briefs were filed, this court, in Bank, in

McNamara

v.

Oakland Building and Loan Association,

132 Cal. 247, elaborately reviewed the subject, and arrived at conclusions adverse to these contentions of appellants. We can see no material distinction between the case at bar and the McNamara case, where the

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