Whelpley v. Ross

delivered the opinion of the Court:

1. The first contention of the appellants under their assignments of error is that the appellee, not being a party to the bond executed by Montgomery to the building association, is not entitled to maintain this suit, in view of the well-settled rule of the common law, applicable to instruments of writing under seal, although not, as it would seem, to simple contracts, that only the parties named or described in such sealed instruments, or those in privity with them (which undisclosed principals are not), are entitled to sue or liable to be sued thereon. But we think that this contention is untenable, for the reason that the rule, except in special or exceptional cases, is not applicable in equity.

*215As we understand it, the complainant in this case, although in the bill of complaint he prays for the cancelation of the bond given by Montgomery and of the stock issued to him, as by the structure of his bill he was probably compelled to do, is neither seeking to enforce that bond nor to rescind it, or to be relieved from its operation. If we regard that bond alone and as standing by itself, the complainant may be said to have no interest whatever in it. What he is interested in is to relieve his property from the operation of the deed of trust given thereon by Montgomery, upon the assumption that the purpose had been satisfied for which the deed of trust had been given,— in other words, that the condition of the bond, which the deed of trust had been given to secure, had been fully performed. It is conceded, and whether it is conceded or not, we must hold, under our decision in the case of Middle States Loan, Bldg. & Constr. Asso. v. Baker, 19 App. D. C. 1, that if the complainant, subsequently to the transaction between Montgomery and the building association, had received from Montgomery a deed of conveyance of the property, he would have been entitled to sue in equity to free the property from the encumbrance upon it, if in fact the liability secured had been discharged. The privity of the estate would have entitled him to maintain such suit.

But it is argued that because he has no such conveyance he cannot maintain the suit. The argument, we think, is without merit. Had it been necessary for the complainant for any reason to have recourse to a court of equity in a suit against Montgomery alone to establish in himself a resulting trust in the property standing in the name of Montgomery, it is beyond question that, upon such showing as is made in this record and especially upon the admission of Montgomery, he would be entitled to a decree for a conveyance to him, or to its equivalent, a decree establishing the title in himself under a resulting trust. Now, in the present case, Montgomery concedes the title to be in him, and no one controverts the fact that he is the true owner of the property. There is, therefore, no good reason why he should not be entitled to maintain this suit, which might per*216haps be regarded, as the consolidation of two equitable proceedings in one.

Three cases are cited in favor of the proposition that equity will not, any more than the common law, maintain a suit by an undisclosed principal to enforce the obligation of a sealed instrument. They are Briggs v. Partridge, 64 N. Y. 357, 21 Am. Rep. 617; Borcherling v. Katz, 37 N. J. Eq. 156, and a case in the English court of chancery appeals, In Pickering's Claim, L. R. 6 Ch. 525. But we think that, upon examination, none of these cases will be found pertinent.

The case of Briggs v. Partridge was not a suit in equity, as counsel for the appellants mistakenly suppose, but a suit at common law, or rather a suit under the code practice of the State of New York, but still essentially a suit at common law, wherein, upon a contract in writing under seal for the sale of some land, the vendor sought to hold the undisclosed principal of the vendee, who was in fact only an agent, for the stipulated purchase money. The contract was executory, and the vendor was ready to execute it, but the vendee and his principal refused. It was held that the suit could not be maintained. Plainly this is no authority in the present case.

In the case of Borcherling v. Katz, 37 N. J. Eq. 156, there was a bond for the payment of money, wherein the nominal obligee was in fact the agent of an undisclosed principal, and the latter sought in a suit in equity to hold the obligor for a breach of the covenant, upon the sole ground that he had no remedy at common law by a suit in his own name; but this was plainly no sufficient ground for recourse to equity. The party had an adequate remedy at common law by a suit in the name of the agent to his own use. And even if he had not, it is no ground for the jurisdiction of equity that a party by his course of conduct may have precluded himself from a suit in his own name. Equity can only grant equitable relief in a case of equitable cognizance, and the mere disability of a party, through his own deliberate action, to sue at common law does not fall under any known head of equitable jurisprudence.

The case of Pickering’s Claim, L. R. 6 Ch. 525, does not *217greatly aid the appellant’s contention. The report of the case is rather meagre and unsatisfactory; but sufficient appears to show that it has no great bearing upon the present controversy. It may perhaps be described as a case of a common-law claim incidentally injected into proceedings in equity. Two brothers had been in partnership and had separated. One of them formed a company for which he was agent; and the company subsequently became insolvent, and its affairs were wound up in the court of chancery. The other brother, in the meantime, had procured a valuable concession from a South American government, and sold an interest in it to the brother who had organized the company, for a consideration, part of which was paid in cash at the time and part remained on credit. The sale took the form of an instrument of writing under seal executed by the two brothers as obligor and obligee, without any reference whatever to the company, although the obligor was in fact acting as agent for the company in the transaction. Upon the insolvency of the company the obligee sought to prove his brother’s liability to him as a claim against the company. It was held that it could not be allowed. The liability was one at common law between the obligor and the obligee, who both acted in full knowledge of the situation; and the rule of the common law in regard to the enforcement of the claim was not changed by the fact that the affairs of the company had come into the control of a court of equity for the purpose of being wound up and settled. Moreover, the case does not hold that, if it had been shown that the company had received the benefit of the transaction, it could not have been held, at least to the extent of the benefit. In other words, while there was a suit pending in equity, the claim presented was merely a claim at common law upon the bond. An analogous case would have been presented here if the building association had sought to hold the complainant personally upon the bond given by Montgomery.

We are of opinion that the appellee was entitled to institute and maintain this suit, and that he is entitled to the relief which he prays if the proofs justify his allegations.

*2182. The principal question argued before us is the alleged usurious character of the transaction between Montgomery and the building association, by reason of which, it is alleged, the bond was rendered void which was secured by the deed of trust. But while it is true that the device of premiums, so called, which was used in this case, has often been employed by the astute managers of building associations to cloak usurious transactions, and the courts have not hesitated, and our own coiirt, among others, has not hesitated, to declare these transactions void whenever it is shown that the device was, in fact, a scheme to evade the usury laws, yet we do not find that on its face the transaction here involved was a usurious transaction, and there is not sufficient evidence in the record to show that it was in fact of that character. The transactions of building associations, so called, can be carried on without usury, and it does not in all cases necessarily follow that the law against usury is violated if a larger sum is reserved to be paid for a loan or for an advance, whichever it may be called, than the principal and interest of the amount advanced. In the'case of Spain v. Hamilton (Spain v. Brent) 1 Wall. 604, 17 L. ed. 619, and Bedford v. Eastern Bldg. & L. Asso. 181 U. S. 227, 45 L. ed. 834, 21 Sup. Ct. Rep. 597, it was held by the Supreme Court of the United States that when the promise to pay' a sum above legal interest depends upon a contingency, and not upon any happening of a certain event, the loan is not usurious. Here the satisfaction of the loan would seem to have been made to depend upon a contingency, for the agreement would seem to have been that the bond should be regarded as satisfied whenever the stock in the name of Montgomery should, by payments by the holder and profits accruing from the operations of the association, become of the full value of $200 a share; and these profits, of course, were contingent.

But, as we have said, we need not determine this question, and we are not sure that there is sufficient evidence in the record to enable us to determine it. Nor does there appear to be any evidence upon which we would be enabled to determine the value of the so-called stock at any specified point of time. There *219are statements that at certain dates it was worth a certain sum, but there are no means of verifying the accuracy of these statements. We think that the case can be decided upon a different ground'.

Section 33 of the by-laws of the association, to which reference has already been had, provides that when shares of stock in a series shall each have reached the full value of $200 a share, or whenever loans to the full amount of every share of stock shall have been made, the shares shall all be paid off and the series shall be dissolved. Now, it is averred in the answer of the defendants that “all the nonborrowing stockholders in the 9th series,” as well as in several other series, “have been paid off in full,” and it is conceded in the statement annexed to the stipulation and made part of it, that Montgomery, with his eleven shares of stock, is the only remaining stockholder in that series. Now, the allegation that the nonborrowing stockholders have all been paid off in full necessarily implied, under the circumstances of this case, that their stock had fully matured and had reached the full value of $200 a share. Necessarily, therefore, the time had come under the by-law cited when all the shares should be paid off and the series dissolved. For the dues being the same for all, and the profits being proportionately divisible among all, the stock of all must mature at the same time. We cannot infer from anything in the record before us that there might be different dates of maturity for different shares of stock. The scheme of the association seems to demand that all the stock shall mature at the same time. Now, if this be so, it is not apparent how the stock of the non-borrowing stockholders could have fully matured and not that of the borrowing stockholders. The dues for both classes are the same, and the profits are equally applicable to both classes. The only difference between the two classes is that the nonborrowing class pays at the rate of $1 a month for each share of stock as dues, and the borrowing class, in addition to this payment of $1 a month as dues, pays also $1 a month as interest and Y0 cents a month as premium. But this payment of $1.Y0 for interest and premium goes into the association as profit, not for the *220benefit of the nonborrowing class alone, bnt for the equal benefit of all the stockholders, borrowers and nonborrowers alike. Were it otherwise, were this profit of $1.70" a month to go exclusively to the nonborrowing stockholders, we should have to hold that the whole scheme was illegal and the device a bold effort to evade the laws against usury.

The conclusion here indicated seems to be confirmed by the fact, which is apparent on the record and not contested by anyone, that, in the period of 125 months which elapsed between the date of the transaction between Montgomery and the association and July 31, 1903, when the complainant demanded a settlement and ceased his payments, the complainant had paid back to the association, on account of the loan to him, the aggregate sum of $3,712.50, in the way of dues, interest, and premium; or, if we exclude premiums, as being in the nature of a bonus, the sum of $2,750, in the way of dues and interest, —in either case considerably more than the $2,200 required to make the shares of stock of the full value set up by the by-laws.

We cannot understand how, under the scheme of this association, the shares of one man alone, the only stockholder remaining in the series, can have only reached the value of $170 a share, when all the other stockholders have received their shares in full.

3. If it be assumed, as we think it must here be assumed, that the complainant has overpaid the amount of his loan, whether such overpayment be the result of mistake or of usury in the transaction, it does not follow that he is entitled in this suit to recover back the amount of the overpayment. There is nothing to show that the directors, against whom a personal decree has been rendered, are or were stockholders of the association. There is nothing to show that they have any money of the association in their hands, derived from the transactions of the 9th series of stock, or from any other series, or from any other source. But apart from all this, it is very clear to us that the complainant is estopped from recovering the amount of his overpayment, at all events in this suit. He is bound by the by-laws of the association of which he became a member. He *221is bound by tbe statements of tbe condition of tbe association which were made from time to time and to which he gave his tacit assent. Under these by-laws and in pursuance of these statements, the money paid into the association by him went to enhance the value of the stock of his associates and himself, and was in great part paid out to his associates when they were settled with and withdrew from the association. Plainly, therefore, it would be inequitable to hold the association as now constituted for money which was paid out to other persons with the knowledge and consent of the complainant.

It is our opinion that, while the complainant is entitled to have his property relieved from the deed of trust, and to have the bond given by Montgomery and the stock issued to him canceled, he is not here entitled to have a repayment to him of the money which he claims to have overpaid, if any such overpayment there was, and that the decree appealed from should be modified to that extent. So modified, that decree will be affirmed.

The cause will be remanded to the Supreme Court of the District, with directions to modify the decree rendered in the cause, in accordance with the opinion of this court, and for further proceedings therein according to law, if any such further proceedings are required in the premises, the costs of this court to be paid, one half by the appellants and one half by the appellees. Modified, and affirmed as modified.