Border State Perpetual Building Ass'n v. Hilleary

Robinson, J., delivered the opinion of the Court. This is a bill filed for the release of a mortgage. The facts are these: The appellant Association advanced to the appellee Hilleary $1040, being the par value of four shares of its stock held by him, and to secure the payment of the money thus advanced, Hilleary and his wife executed to the Association a mortgage. Hilleary from time to time continued to make bi-weekly payments of interest and dues according to the terms of the mortgage, until the whole sum thus paid by him, amounted to one-half at least of the mortgage.

Such be ⁵⁴ ing the case and not wishingoto continue the payment of interest on the whole debt, of $1040, the Secretary of the Association advised him to have the mortgage released and to retire two of the four shares, and give a new mortgage on the same property for $520, being the sum due on the original mortgage and being also the par value of the two remaining shares. Accordingly, the mortgage was released, two of the shares of stock were retired, and a new mortgage for the payment of $520, was executed. ,At the same time, a check for $520 was drawn by the Association payable to the order of Hilleary, but this check was endorsed by him, and then deposited by the Association in .bank to its credit. So not one dollar was at that time advanced to Hilleary. After its execution he continued to pay the interest and dues on the second mortgage, until the amount paid by him, added to the payments made o'n the original mortgage exceeded the mortgage debt of $1040, with interest thereon.

Application was then made to the Association to release the mortgage, but this was refused on the ground that there was still a balance due on it by the appellees. The auditor’s account, shows that the entire sum paid by Hilleary on the first and second mortgages exceeds the $1040 advanced to him, with interest, but the Association contends that the first mortgage was paid and released at the time of the execution of the second, and that Hilleary is not, therefore,