Equitable Building & Loan Ass'n v. Bidwell

82 N.W. 384, 60 Neb. 169, 1900 Neb. LEXIS 122

• Court: Nebraska Supreme Court
• Decided: April 18, 1900
• Docket: No. 9,218
• Status: Published

Opinion

Sullivan, J.

This action was instituted by the Equitable Building & Loan Association to foreclose a real estate mortgage. Some of the defendants are the mortgagors and the others are owners of incumbrances on the property covered by plaintiff’s mortgage. The district court gave plaintiff a first lien on the premises described in the petition, and from that judgment the defendants have appealed. They first contend that the association has not shown that it possesses legal capacity either to contract or to sue. This contention can not be sustained. The mortgagors are not permitted to deny the validity of the plaintiff’s mortgage (sec. 144, ch. 16, Compiled Statutes, 1899; Holland v. Commercial Bank, 22 Nebr., 571; Livingston Loan & Building Ass’n v. Drummond, 49 Nebr., 200), and .the other defendants being in privity with, them are also bound by the estoppel. But if this were not so, there is another reason why the alleged want of corporate capacity does not entitle defendants to a reversal of the judgment.1 The plaintiff is a Nebraska corporation; its home office is in Dakota couhty, and there its articles of incorporation are recorded. At the time it was organized, section 126, chapter 16, Compiled Statutes, 1895, was in force and provided as follows: “Every corporation, previous to the commencement of any business, except its own organization, when the same is not formed by legislative enactment, must adopt articles of incorporation, and have them recorded in the office of the county clerk of the county or counties in Avhich the business is to be transacted, in a book kept for that purpose.” At the trial the plaintiff produced a copy of the record of the articles, duly certified by the county clerk, and the same Avas received in evidence. This was competent and primary proof; and it established completely- the right of the association to make contracts and enforce them by suit. Code of Civil Procedure, sec. 408; Hall v. Aitkin, 25 Nebr., 360; Farmers Loan & Trust Co. v. Funk, 49 Nebr., 353. In addition to this there Avas introduced in evidence a certificate issued by the banking department, under section 148c, chapter 16, Compiled Statutes, 1895, authorizing the plaintiff to do business in this state as an incorporated building and loan association.

Another argument pressed vigorously on our attention by counsel for defendants is that the evidence does not entirely support the judgment. The plaintiff has filed no brief in the case, and we are not advised of its views upon this point. It seems quite probable that the recovery is not excessive, but we are unable to find in the record any evidence whatever that the amount awarded the association is the actual balance due on its loan to the principal defendants. It is provided in the mortgage that the amount due the plaintiff, in the event of a foreclosure, shall be the original debt, all monthly installments on the borrower’s stock, interest, premiums, fines, charges and penalties due at the date of the decree, together with any sums paid by the association for insurance, taxes or assessments on the mortgaged property, which aggregate sum shall be credited Avith the withdraAval value of the borrower’s shares of stock as fixecb by the by-laAvs of the company. The by-laws were not introduced in evidence, and, therefore, the withdrawal value of the borrowers’ shares was not determined in the mode prescribed by the contract, nor in any other manner. The borrowers, it is true, were credited with the actual amount paid by them to the association, but we have no means of knowing that such amount represents the withdrawal value of their stock. Probably it exceeds such value, but there is no basis in the record for saying that it does. The judgment rests, in part, on mere conjecture, and it must, therefore, be reversed.

Reversed and remanded.