Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-08-25

RIGHTS OF WITHDRAWING MEM
BEERS OF a BUILDING ASSOCIA-
TION DEFINED.
The plaintiff was withdrawing
member of the defendant building as
sociation and filed his bill for relief
a decree for the company was entered
ana plaintiff appealed.
The court says:
The position occupied by a withdraw
ing member of Il building association
Is not very clearly defined by the au-
thorities 1t is said that he is not in
all respects a creditor, for IL that were
SO he might get Judgment. issue an
execution. acquire a lien upon real es-
tate. and subject the personality of
the association to the prejudice of
other creditors. He is no longer u
member of the association so far as his
right to participate in its management
and control is concerned He has no
right of action against the company
uhtii fund accrues out of which, in
accordance with the charter and by
laws or hte company, his debt should
be paid; and as 1t appaers from the
averments OF this bill that no such
fund existed at any time in this case,
1t would seem that the right of action
has never accrued to him as creditor.
III this be true, then 1t follows that his
right to sue is not affected by the
statute of limitations; but if he is to
III St5tiiN Su OIlly us CEeullOT nc Is
sun out of court, because there was no
right of action which entitled him to
be in court. ~ member of such an as
ISOLATION must upon withdrawal retain
some relation to the company growing
out of his membership other than that
oil creditor. II seems to us that by so
much as he falls short of being cloth
ed with the rights OF q creditor by so
much there must remain In him the re-
siduum of his rights as n member;
otherwise, as in the case at bar. he
could not sue as Il creditor because
there was no fund out of which his
debt could be paid and the company
by It's dereliction of duty would deny
all redress If he is not permitted to
seek Il remedy in his capacity as stock
holder. These propositions seem to be
supported by authority.
In Sibun V. Pearce. l.. II. IA Oh. Div
354, Lindley, l.. j., says of the position
OF one who has given notice of with
drawal but has not received payment
that he is not an ordinary creditor
Is plain. He cannot come into compe-
tition with outside creditors. On the
other hand, as between himself and the
continuing members, he is entitled to
be paid the amount due to him before
they can divide the assets. In that
sense he is a creditor though he can
not take part in the affairs of the So
ciety."
We have seen that withdrawing
member cannot sue until sufficient
fund is accumulated by the society to
meet his demands, for until that event
has happened he has no right of ac-
ton, and it is we'll established that
the statute OF limitations does not be-
gin to run until the right of action ac-
crues. We have seen that 1t is the
duty fthe association to set apart q
fund to meet it's obligation to with
drawing members, and it conclusively
appears from the bill under consider
alton that this duty In this instance
has not been performed, and that the
course taken by the stockholders pre-
cludes the possibility that appellant
can obtain relief from that source.
The prayer for relief asks the APP
pointment of a receiver. and IL need be
the winding up Of the anairs of the
company. This prayer upon the facts
presented by the bill is sufficient to
entitle the appellant to the relief which
he seeks. if upon n hearing on the
merits he is able to establish by proof
the case which he has made in the
pleadingS. Reversed.