Peter's Building Ass'n, No. 5 v. Jaecksch

Alvey, J., delivered the opinion of the Court. The articles of association of the appellant are exceedingly meagre, and the by-laws, if any, are not disclosed by the record. Enough appears, however, to enable us to say that the plan of the organization was of a mutual character, and intended to be in accordance with the general incorporation law of the State, found in the 26th Article of the Code, secs. 84 to 88, inclusive, as enacted by the Act of 1868, ch. 471. Alois Kusbert, one of the mortgagors in the mortgage to the appellant, dated the 1st of April, 1871, was a shareholder and a member of the association; and the mortgage was executed to secure to the corporation, 1st.

All unpaid instalments on the seventeen shares of stock sold to or redeemed by the association; 2nd. Interest on the sum paid or advanced by the association to the shareholder; and 3rd. The payment of all fines and penalties imposed for non-payment of weekly dues, being weekly instalments on the shares of stock redeemed, and the interest on the money advanced on such redeemed shares. Such being the relation of the parties and the object of the mortgage, we cannot agree in the position of the appellee, that the mortgage is to be considered as one between individuals, and that it should be treated as for a simple loan of money.

The covenant in the mortgage requires that the mortgagor, or his assigns, shall pay the weekly sum of $8.50, (that amount including both the instalments on the shares of stock redeemed, and the interest on the money advanced,) on every Thursday ²⁰² evening, until the time should arrive when the association should have sufficient funds on hand to pay the unredeemed shareholders the sum of $150, on each share held by them, clear of all losses and liabilities ; also all fines that should be imposed on him, &c. “All of which payments and covenants shall continue in force until the said body corporate shall have sufficient funds on hand to pay the holders of every unredeemed share, above all losses and liabilities, the sum of one hundred and fifty dollars, and the said corporation shall, by the terms of its Act of incorporation, have become extinct.” From the terms of this covenant it is clear that, in the contemplation of the parties, the payment of the weekly sum of $8.50, embracing both weekly instalments on the shares, and the interest on the money advanced, should continue until the time arrived for the corporation to cease to exist, and not as contended by the appellee, only until the weekly payments should amount to a sum equal to that originally advanced on the shares redeemed. This covenant, however, must be taken to - be .made in contemplation of the fact that the association should continue in active operation, with a view to effectuating the objects and purposes of its organization, until its accumulations should be sufficient to enable it to close its operations upon the basis of a solvent corporation, according to the law under which it was created. Otherwise there might he no end to the payment of-the weekly dues, and the mortgagor would never be able to redeem his property. If therefore the association should cease active operations under its constitution, by reason of insolvency or other cause, before the proper time for it to terminate, from the time of such suspension the right to demand the weekly dues as such would cease; and if the amount paid in before that time be not sufficient to cover the original amount advanced on the shares redeemed, and all accrued interest thereon, the mortgagor will then