Home Mutual Building & Loan Ass'n v. Leonard

Whitfiedd, J., delivered the opinion of the court. This record presents a case with some features of extraoi*di-nary hardship; and we are not to be understood as saying that the appellees may not be entitled to relief in the proper forum/ 'But.the defenses which would be available, if any, are equitable and cannot be interposed in this action. Endlich Building fe Loan Associations, secs. 309, 313, 510, 512. And [47] to that forum appellees may still resort, if they desire. It is not allowable for them, further, to present as a defense here, matter which would sustain a proceeding by quo warranto on the part of the state. Ib., secs. 481, 507. “No private person,” says the author, “can ask for its dissolution, on such grounds, nor insist upon the consequence with which the state might visit corporate misbehavior, for the purpose of escaping his contract obligations with the association.” The Colorado case — Hamill v. Bank, 22 Colo., 384 — went off upon the effect of an agreement between the parties that the time of maturity of the debt secured by the trust deed had been postponed to a period beyond the date of the sale and purchase under the instrument, in the light of the wording of their statute. The defense “substantially was,” under the wording of the statute, “that the property had not been duly sold, nor the title in the plaintiff duly perfected” — p. 386. Practically the whole force of the decision was that under the statute and the agreement it was competent to defend by showing that the right to possession which would have otherwise resulted from the deed under the foreclosure sale, had been by the agreement deferred. The agreement qualified and limited the rights under the trust deed. That is not our case. Lobdell v. Mason, 71 Miss., 937, and Williams v. Simpson, 70 Miss., 113, do not apply. The trust deeds are not void for illegality; and if it be true that the equitable defenses can be-sustained by proof — as to the sufficiency of which proof we say nothing now — the appellees may have their day in the appropriate forum. Unfortunately with us, the distinctions between law and .equity have not been abolished. Reversed and remanded.