Interstate Building & Loan Ass'n v. Hafter

Terral, J., delivered the opinion of the court. . In August, 1892, Theresa P. Iiilzim subscribed for twenty shares of stock in the Interstate Building & Loan Association, of Columbus, Ga. On January 21, 1893, she borrowed of the company $1,000, and to secure the repayment of said sum put in pledge her twenty shares of stock, and conveyed to a trustee certain real estate in Washington county, Miss. ' She also contracted to pay to the association on the third Wednesday of each month thereafter $12, as a monthly installment on said loan, until ten shares of said stock, by the installments paid on it, with its proportionate share of the profits, should reach a par value of $100. She also agreed to pay monthly, until the maturity of said loan, $5 interest thereon. It was stipulated that when the ten shares of stock to be matured by Mrs. Hilzim were brought, by the payment of the $12 monthly dues and the profits accruing to them from the concern, to the value of $100 each, the deed of trust on said real estate was to be void, and the twenty shares of stock were to be canceled; but if default was made by her in the performance of her contract of membership, provision was made for a sale of the real estate to repay said loan. [778] After the execution of said trust deed, and after Mrs. Hilzim had £nade sundry payments under said contract, she conveyed the real estate described in the trust deed to the appellee, Mrs. Hafter. Mrs. Hafter continued the payments of the monthly dues and interest under said contract until some fifty - nine or sixty payments had been made, when she filed the bill in this case. By the terms of the contract between Mrs. Hilzim and the association, Mrs. Hilzim was to pay monthly to the association $12 as dues and $5 as interest, and continue such monthly payments until the payments arising from the $12 monthly dues, with whatever profits might accrue to her from the venture, should mature ten shares of stock to the par value of $100 each. At the time Mrs. Hilzim took this loan of $1,000, section eight of article five of the by-laws of the association provided that the borrowing member, after one year from the taking of the loan, and on thirty days’notice, could pay off the loan on the estimated basis that eighty-four payments of dues and interest would mature the stock and cancel the debt; but before this bill was filed, and before any notice was given by Mrs. Hafter to the association of any desire on her part to repay said loan under the provisions of said by-law, the said bylaw had been repealed and another by- law adopted in its stead, which provided that the borrower could repay his loan before maturity, but, in so doing, must pay, in money, the difference between the sum loaned him and the withdrawal value of' his stock. It is to be noticed that when Mrs. Hilzim became a member of the society the by-laws provided that the board of directors, by a majority vote, could make amendments thereto. After making, as it was alleged, fifty-nine or sixty payments, Mrs. Hafter, as the assignee of the rights of Mrs. Hilzim under said contract, filed her bill, praying that she might be allowed to repay said $1,000 loan upon the basis that eighty-four payments would cancel the debt, under section eight, article five, in force at the time of the loan, but repealed at the time of [779] giving notice of withdrawal and the bringing of this suit. The difference in the sums to be paid, under these by-laws, was $200, more or less, in favor of Mrs. Hafter. The court decreed that Mrs Hafter had a right to repay the loan on the basis as provided for in section eight, article five, of the bylaws of force at the time Mrs. Hilzim took the loan, and from that decree the association appeals. If the by-laws of the association, of force at the time of the loan, are a part.of the contract, in such sense that the rights provided for by them inure as vested rights to the borrower, then the action of the chancellor is correct; but if the association might amend its by-laws so as to affect rights merely given by them, and not secured by the terms of the'contract, then the learned chancellor erred. That a benevolent association may amend its by-lavrs affecting rights secured by them to such member, if such amendment be made by his consent, is a rule without a dissenting expression; and it is reasonably held that the existence of a by-law, at the time a member joins the association, providing for their amendment, is a consent on his part to a change of them in the future, if made before any notice of withdrawal is given. Knights of Golden Rule v. Ainsworth, 71 Ala., 436, 450; Knights of Pythias v. Knight, 117 Ind., 489, 496, s.c. 20 N. E., 479. Reversed and remanded.