Hampstead Building Ass'n No. 11 v. King

Bartol, C. J., delivered tbe opinion of tbe Court. This is an appeal from a decree of the Circuit Court of .Baltimore City, declaring tbe appellee’s mortgage held by the appellant to be fully satisfied and paid, and direct ²⁸⁰ ing the appellant to release the same. The decree was based upon the account stated by the auditor, from which it apj)eared the appellee had paid a considerable sum in excess of the mortgage debt. This result was reached by taking as the basis of the calculation the sum actually advanced to the appellee in money, and counting interest thereon at six per cent, per annum, deducting from time to time the payments made by the mortgagor, according to the rule applicable to an account between debtor and creditor.

The only question presented by the appeal is whether, under the facts and circumstances disclosed in the record, the auditor’s account was correctly stated. In support of the decree, the appellee contends (we quote from the brief) “that the society had been practically dissolved; that the mortgagor could not perform the covenants of his mortgage, and was, therefore, entitled to have the same released upon the payment of the sum justly due,” according to the rule established in Windsor, et al. vs. Bandel, 40 Md., 172 , and Low Street Building Association vs. Zucker, 48 Md., 453 . “And even if the Association be not actually dissolved, if there be no chance of paying the unredeemed shares their par value, and the Association be unable to carry out its contract with the mortgagor, so as to enable him to get a release of the mortgage, according to the terms of his covenants, then the contract as originally contemplated is terminated, and the appellee occupies the same position as if the Association were dissolved,” and the rule above stated is applicable. We think this is a sound position, and an examination of the facts disclosed by the record has satisfied us that the case falls clearly within it. By the agreed statement of facts contained in the record, it was admitted “ that there are now 40 shades (according to the proof afterwards taken, 45 shares,) on ²⁸¹ which no money has been advanced, and that $88 had been paid on each share; and 222 shares on which money lias been advanced, either on mortgage, or on the shares themselves.

The weekly receipts of the Association now average 815, and are regularly now being paid week by week. In addition to its mortgages, the Association owns property valued at $8000, but probably not worth so much, and has no money in cash, and does not owe one dollar to any one, each week's receipts being at once paid out to shareholders according to its laws. The holders oí the free shares have notified the appellant of their desire to withdraw from the Association under their righ t to do so by virtue of Art. XIV oí' the Constitution, and are awaiting the incoming of funds to enable the Association to gratify their demand, to its great profit, each shareholder agreeing to take what he has paid in per share, without interest.” Art. XIV referred to, requires that “any member desirous to withdraw shall notify the Directory in writing, which shall refund to him all his weekly dues after deducting losses.” The case ivas submitted in the Court below on the 1st day of March 1881; on the 7th day of March, a petition was filed by appellant, alleging that the agreed statement was made inadvertently', and was not accurate; that the holders of free shares gave parol notice of their wish to withdraw, but gave no notice in writing as required by the constitution, that on further reflection they had rescinded such desire,' and were willing to continue. And prayed to be