The Montgomery advertiser., 1901-07-17
PIONEER SAVINGS AND LOAN co
 A

PIONEER SAVINGS AND LOAN co.
 V. NONNEMACHER.
 Bill in equity to enjoin foreclosure of
 mortgage, and to have mortgage
 cancellAi-Appeal from the City
 Court of Anniston.
 1. Bill to enjoin foreclosure of mort gage and to cancel same; amendment; when not repugnant-Where in a bill filed against building and loan asso- citation to enjein the foreclosure of a mortgage and to have the mortgage cancelled. the relief prayed for is based upon averments therein showing that the mortgage debt has been fully paid. there is no repugnancy in an amend ment thereof which contains alterna- tive avt.ments showing in detail how the mortgage indebtedness has been settled, the manner of securing the loan from defendant. his subscription for stock in the association, which 1t was stipulated should mature at a de- signated time, and then ayers that complainant has paid all instalments and assessments against his stock dur ing said stipulated period and that the value of hiA stock, which was held by defendant as collateral for the mort gage debt, was more than sufficient to pay off the mortgage indebtedness, and then prays for a statement of account between complainant and defendant and for a decree over against the de- fendant for any balance that might be ascertained to be due complainant: and such bill as so amended is not subject to demurrer for inconsistency and repugnancy.
 ?. Building and loan association; subscription to stock; usury.-A sub scriber for stock in a foreign building and loan association. pays his mem- bership, fee and the subscription con- tract stipulates that if the subscriber pays all his dues and assessments, the stock shall mature at designated time The day after so subscribing, he makes application to the association for loan. which was subsequently, obtained to secure which he executes a note and mortgage on real estate, and transferred to the association as collateral security for the mortgage debt his stock so subscribed for The mortgage debt was made payable at the time fixed in the subscription contract for the maturity of the stock. The note and mortgage provided for the payment of per cent interest and 5 per cent premium per annum, and were payable at the home office. The legal rate of interest in the State of the aS- socIation's residence was 10 per cent Said subscriber and shareholder parti- cipated in the profits and had an equal voice with the other shareholders in the management and control of the association. Held: There was a dual contractual relation of shareholder and borrower borne by said person to the association, and the respective duties and obligations as shareholder and bor- rower resting upon him are separate and distinct; and, therefore, it ca1 not be said that such subscription and bor- rowing constituted but one single transaction, which took such form as scheme or device to avoid the usury laws.
 3. Usurious contracts; by what laws construed. Where a contract is made in one State to be performed in another state, the parties may stipulate for the payment of the highest legal rate of interest allowed by either State. without offending against the usury laws of the other State, provided such stipulation is not made as a subterfuge and device for. and with the intention of. evading the usury laws.
 4. Same; same; building and loan as- sociation-When a resident of this State borrows money from building and loan association. incorporated un-