Mutual Building Loan Ass'n of Eufaula v. Guice

*8 PER CURIAM. As stated, this action was brought by appellee, Guice, against appellant, the Mutual Building & Loan Association of Eufaula, Ala., and sought to recover the statutory penalty of $200 for failure to cancel a mortgage given by appellee to appellant (Code 1923, § 9024). Guice, the appellee, was a stockholder in the building and loan association. On August 2, 1930, he obtained an advance from said association of $7,440 upon 62 shares of stock owned by him, or $120 per share. Dues to the association were payable on the first Monday in each month and it was provided in the by-laws that a borrower or purchaser of an advance shall pay in addition to his or her other monthly dues $1 per month for each share of which such advance is made; and in case of failure to pay shall be subject to a fine. There was also a provision for forfeiture for nonpayment of dues or other obligations. Guice had paid his August, 1930, dues on the first "day of that month and that, according to the evidence, was his usual custom. On September 1st he paid his regular monthly dues, and his $1 per share assessment for the advance. The undisputed evidence shows that he continued to make payments of similar amounts until April, 1932, when all assessifients were stopped and the stock became worth $120 per share, the exact amount appellee had received from the association as an advance. The association was wound up during 1932, paying all other stockholders $120 for each share of stock owned by them. It is contended by the appellee that the payment of $1 per share, $62, was not due by him until September since he had already paid his August dues before the loan was made. Appellant contends that he should have made the payment in August. We do not think it necessary to pass upon this question as the -undisputed evidence shows that the association accepted the sum of $124 for each month from September, 1930, until April, 1932, the association being wound up that year as a solvent concern paying each stockholder $120 per share, the exact sum appellee had obtained as an advance. The maturity of the stock in a solvent building and loan association satisfies the obligation of the borrower and he is entitled to whatever security he has given the association and to have the same canceled. Endlich on Building & Loan Associations, §§ 98, 331-333, and § 155. This doctrine is’ fully recognized in Alabama in the case of Southern Building & Loan Asso. v. Anniston, etc. Co., 101 Ala. 582, 15 So. 123, 126, 29 L.R.A. 120, 46 Am.St.Rep. 138. Quoting from a note by Mr. Freeman cited in that case the .opinion says: “It must be remembered, that when a member obtains a loan or advance he anticipates the amount he is to receive upon the termination of the association.” A forfeiture is waived by the acceptance of dues after the forfeiture has accrued without any other action on the part of the board of directors. Endlich on Building & Loan Associations, § 74; 9 C.J. pp. 950, 951, § 60; 4 R.C.L. p. 61, § 19. The object of stock payments is ultimately to satisfy the stock, and in case of a borrower such payments operate finally to satisfy the debt and the borrower is *9 entitled to his security. 4 R.C.L. pp. 351, 352, § 10; 4 R.C.L. p. 376, § 32. It follows that appellee, having continued his payments without formal protest from the association, until the stock matured and its value was then worth exactly the sum he received as an advance, is entitled to a cancellation of his mortgage as provided by the judgment of the court below from which this appeal was taken. We note from the record that the notice served upon appellant by appellee is not signed, but no point is made in this connection, the same being expressly waived by defendant. Moreover, the testimony of the secretary and treasurer of the company admits that a formal written demand was given the association at the time stated to cancel the mortgage on the record. It is urged in brief of counsel that as the mortgage given by plaintiff provides for attorney’s fees in preparation of the papers for the loan and for recording fees, etc., and there being, no evidence that these items were, paid by plaintiff, that we must hold that the amounts are still due on the mortgage, and we are cited the cases of Mayhall v. Woodall, 192 Ala. 134, 68 So. 322, and Smith et al. v. Bank of Enterprise, 148 Ala. 501, 42 So. 551, to sustain this insistence. It will be observed in these cases there was evidence that these items were not paid by the mortgagor and not waived by the defendants and were still due under the mortgages; while in this case there is no evidence on the subject other than the recording of the mortgage and the fact that defendant made no charge on its books of such items against plaintiff. The foregoing expresses the view of a majority of this court, but as to this Judge SAMFORD is unable to concur and accordingly dissents. The application for rehearing is granted, the former opinion becomes the dissenting opinion of SAMFORD, J., and the judgment of the lower court from which this appeal was taken is affirmed.