Gwin v. National Building & Loan Ass'n , 121 Ala. 572 ( 1898 )

TYSON, J.

— Partial payments made by „a mortgagor upon the mortgage debt must be such as he is entitled to have applied to the satisfaction of the debt pro tanto at the time he makes the demand of the mortgagee to enter them upon the margin of the record of the mortgage. If this right is undeterminable or dependent upon an act to be performed in the future, at the date of the making of this demand, he cannot maintain an action under section 1065 of the Code against a mortgagee who fails or refuses to make the entry after demand in writing within the time prescribed.

The appellants became members of the defendant Building & Loan Association and subscribed for twenty shares of its stock, and obtained a loan of |1,000, securing their contract by mortgage. Under the by-laivs of the association they were entitled to one vote for each share of stock owned by. them and otherwise to participate in the management of the association. On the first day of the months of January and July in each year the association was required to apportion and credit all undivided profits upon the shares in force. The dues required to be paid by the share-holders are the only source of income to the association by which any profits can be accumulated by the association to be applied to the payment of the shares of stock. Whenever the stock has been fully paid up by the profits earned by the association, the holder of the stock can have its value applied in part payment of the loan. And it is this alone that they have the right to have applied as a credit upon their mortgage debt. And this they cannot demand and enforce should they make default for six months in the payment of their dues. For upon such forfeiture they would not be entitled to have the mortgage debt abated to the extent of the aggregate of the payments made by them on their stock subscription prior to their default.—Southern B. & L. Asso. v. Anniston Loan & Trust Co., 101 Ala. 582, and authorities there cited. It is nowhere shown nor is it contended here that appellants’ stock has matured or that they have repaid their loan, non constat, they may have after the institution of this suit made default. Under the authority last above cited the monthly payments are not partial payments uuon their mortgage. See also End-lich on Building Asso. § § 132, 477, 480, 481 and 482.

The judgment must be affirmed.