amount of appellant's indebtedness to have been ascertained before the injunction was dissolved? In Smith & al. v. Flint & al., 6 Gratt. 40, it was held that the sale of land should not be directed, though unquestionably chargeable in equity, until the amount of the debt is ascertained. Judge Cabell, delivering the opinion of the court, says: "John S. Wellford, executor, has an unquestioned lien for the payment of his debt; and if the amount had been ascertained, it would have been proper to direct a sale of the land for its payment. But as the record states that it did not appear to the court what amount was due, the decree for a sale of the land for the payment of that debt was premature and erroneous. See also Lane v. Tidball, 1 Va. R. 130. 249 A part of the debt for which the sale, it seems, was to be made, to wit, $1,201.28the balance due from the appellant on account of monthly dues and fines*was well ascertained; and the deed of trust expressly authorizes a sale for any default in those payments. But the appellant alleges in his bill, and it is not denied in the answer, that the land advertised to be sold was worth, and would sell for, vastly more than the amount so due. It was clearly competent for him to have objected to the sale of the whole tract to satisfy that sum. The trustees are the agents of both parties, and are bound to have respect to the rights and interests of both in the administration of the trust. And if the appellant had laid off a portion of the tract, and requested the trustees to sell that to satisfy the arrearage of monthly dues and fines, and their authority was limited to sell for that sum, it would have been their duty to comply with the request, unless they had reason to believe that the portion so laid off was insufficient, or that their compliance might impair or endanger the security which the deed was designed to give for his other indebtedness. But in this case the record does not show that the appellant proposed to lay off a part or parcel of the land conveyed to be sold to satisfy this debt, or that he requested the trustees to sell in parcels. No such request having been made, and no proposition made to lay off and sell any particular portion of the land, was it required of them, as the agents of both parties, to have done so of their own motion? The case did not present that question for their decision. It was not their purpose to sell only to satisfy the arrearage of $1,201.28, but the sum also which the appellant was liable to pay in lieu of the principal sums advanced to him, which was to be ascertained and determined on by the board of directors, which they are authorized by the deeds to do. For the deeds expressly require the trustees to pay that sum out of the proceeds of sale, and the balance, if any, to pay over to the grantor. And we are here met by the question, Was it necessary that such sum should be ascertained before sale was made? 250 * should know the amount in order to stop the sale by its payment. He was authorized to stop the sale without paying any part of it; that is, by the payment of $1,201.28. And inasmuch as the question as to the amount due and owing on the latter account could be as well determined after as before the sale, and was not in conflict with the deeds, but seems to have been contemplated by them, and was authorized upon any default, and the determination would be equally subject to judicial supervision, whether made before or after the sale, I was inclined to think that this case did not fall within the principle of Smith v. Flint, supra, and that the sale could be made within the authority of the deeds of trust before the chosen referees had determined what sum should be paid in lieu of the principal sums advanced. But my brethren being of opinion that the amount should have been ascertained before the sale, and as the uncertainty as to the extent of the charge upon the land might in some way have prejudiced the sale, I yield to their judgment. The court is therefore of opinion, that the board of directors should have ascertained and determined what sum was due from the appellant in lieu of the principal sums advanced to him by the association before they made sale of the land conveyed to them, and that the decree dissolving the injunction was therefore premature and erroneous, and for this cause must be reversed. The other judges concurred in the opinion of Anderson, J. 251 The decree was as follows: This case having been heard by the court at its place *of session at Staunton, where it is pending, but not having been there determined, this day came on for determination here; whereupon the court having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing, to be filed with the record, that the Building Fund Association, by the redemption of the appellant's shares of stock, acquired the right of property therein; and that the assignment of them to the association, by the appellant for the price he received, was not an hypothecation for a loan, but an absolute surrender of them to the association, whereby they were sunk and extinguished, and consequently could not entitle the appellant to participate in the final division and distribution. The court is further of opinion, that such division and distribution is required to be made when the accumulated fund is sufficient to pay on each of the unredeemed shares two hundred dollars, after the payment of all debts and liabilities of the association, and that the twenty-third article of the association on this subject is authorized by section seven of the statute. The court is further of opinion, that the assignment of his shares of stock by the It was not necessary that the appellant appellant to the association, did not release Decree reversed. him from his covenant, as a party to the the clerk of the Circuit court of Rockbridge articles of association, to make his regular county. monthly payments on stock, and on account of fines, and that the enforcement of his said obligations is secured by his bond and deed of trust, by which also he obligates himself to pay interest at the rate of six per cent. per annum on the sums actually received, as authorized by section eight of the statute, until the termination of the association; and that the transactions between the parties were not usurious, nor within the prohibition of the said eighth section. The court is further of opinion, that for any default in the payment of monthly dues or fines, the trustees were authorized 252 BUILDING AND LOAN ASSOCIATIONS. v. Redemption of Stock. VII. Withdrawal of Members. I. ORGANIZATION OF ASSOCIATION. This act was omitted from the Code of 1887, and. being a law of a general nature, was repealed by § 4202. Crabtree v. Bldg. Ass'n, 95 Va. 673, 29 S. E. Rep. 741. (1898.) and required to sell, when requested organization of building fund associations without by the *board of directors, the prop-order of court, has not been repealed by subsequent erty conveyed to them in trust by the statutes. Davies v. Creighton, 33 Gratt. 696. (1880.) appellant, not only to satisfy the arrearages due, but also such sum as might be due and payable by him on account, or in lieu, of the principal sums advanced, or paid to him for his shares, to be ascertained and determined by the board of directors, who are the chosen referees of the parties for that purpose, according to the rate at which the shares may have been redeeming at the time the sale was advertised to take place; but that such sale ought not to be made until such indebtedness was ascertained, and that, consequently, the decree dissolving the injunction, and allowing the trustees to proceed with the sale before the amount of the debt charged upon appellant's land was so ascertained, was premature and er roneous. II. CONSTITUTION OF ASSOCIATION. The articles of an association prescribe the limits within which the corporation can properly act; the by-laws indicate the extent to which the corporation has seen fit to put into action the powers which the articles have conferred, and though the charter or articles in conferring the power may use imperative or mandatory language, yet if it be a benefit, a privilege or advantage conferred upon the corporation, such as the power to impose fines on delinquent stockholders, and not a duty imposed, it may qualify, diminish, or waive its exercise in whole, or in part. Dupuy v. Eastern B. & L. Ass'n, 93 Va. 460, 25 S. E. Rep. 537. General Statute.-When the statute provides that. New York Statute.-According to New York law. an association has no power to guarantee that stock will be matured in a fixed time. To hold otherwise would be to so decide at the expense of other stock It is, therefore, decreed and ordered, that for this cause, said decree be reversed and annulled, and that the appellees, The Me-stated dues, fines, etc.," may be assessed and colchanics Building Fund Association of Lex- lected, the association may levy reasonable fines ington, pay to the appellant his costs and may provide for payment of a reasonable expended in the prosecution of his appeal transfer fee and the payment of these may be aforesaid; and the cause is remanded to the enforced by the corporation. McGannon v. Cent. Circuit court of Rockbridge for further pro- Bldg. Ass'n, 19 W. Va. 726; Dupuy v. Eastern B. & L. ceedings to be had therein, in conformity Ass'n, 93 Va. 460, 25 S. E. Rep. 537; Parker v. U. S. with the principles of this decree; that an Bldg., etc., Ass'n, 19 W. Va. 744. account be directed to be taken by a commissioner of said court to ascertain the amount of plaintiff's indebtedness to the association on the 26th day of April 1870, on account of arrearage of interest, monthly payments on stock and fines, and also an account of principal sums paid to him by the association, as may be ascertained and determined by the board of directors, according to the rate at which shares were redeeming at that time, it being the time when the property was advertised to be sold, and the time when the accounts should be closed. And that said commissioner be required to report to the court thereof, with such testimony as either party may offer, bearing upon the questions submitted to 253 him, in order to a final decree. *Which is ordered to be entered on the order-book of the court here, and to be forthwith certified to the clerk of this court at Staunton, who shall enter the same on his order-book, and certify the same to holders. Nor is obligation to pay dues on stock void for uncertainty. The company had no power to make anything but an indefinite contract, so far as the time when its stock would mature is concerned. Campbell v. Bldg. Ass'n, 98 Va. 735, 37 S. E. Rep. 350. Representations of Agents.-A building association is not bound by the statements of their agent as to a balance due on a loan, it appearing that his duty was simply to receive and receipt for premiums and dues payable to the association. Day v. Bldg. Assoc., 96 Va. 486, 31 S. E. Rep. 902. III. LOANS AND SECURITY. Priority of Liens.-A building fund company agrees to advance to one of its members money to build a house on a lot owned by him, and advances a part of the money and takes a lien upon the lot and the buildings which may be erected upon it, to secure the advances made and to be made. The member An then makes a contract for the building of a house | Rep. 603; Gray v. Balt. Loan Ass'n (Va.), 37 S. E. on the lot, with a mechanic who, to raise money Rep. 533. faster than it can be gotten from the company, assigns the contract to a person who undertakes to advance the money; and the contract is recorded, so as to create a mechanic's lien. After the contract is recorded, the company advances money from time to time, as it had agreed to do, which is paid to the assignee in part satisfaction of his advances to the mechanic, with a knowledge on his part, that it comes from the company, and that the company claims priority of lien upon the property. The company is entitled to priority over the mechanic's lien, for its advances made after the contract was recorded, as well as for its advances made before. Iaege, etc.. v. Bossieux, 15 Gratt. 83, 76 Am. Dec. 189; Nat. Mut. Bldg. Ass'n v. Blair, 98 Va. 49, 36 S. E. Rep. 513. A charter granted under § 1145 of the Code is sub-. ject to the general laws of the commonwealth. association organized under § 1145 cannot vouch its charter to justify or excuse any violation of the law upon the subject of usury. Crabtree v. Bldg. Ass'n, 95 Va. 670, 29 S. E. Rep. 741. Sale under Deed of Trust.-Borrower from a building association gave a deed of trust allowing sale on defaults for cash enough to pay sums due to association and credit as to the residue. Held, such deed did not authorize sale for cash enough to cover amounts not yet due. Fox v. Cottage Bldg. Fund Ass'n, 81 Va. 677. When a deed of trust authorizes a sale to pay an amount to be ascertained by referees appointed according to the articles of association, the sale should not be made until such indebtedness is ascertained. Nat. B. & L. Ass'n v. Ashworth, 91 Va. 706, 22 S. E. Rep. 521; White v. Mech. Bldg. Fund Ass'n. 22 Gratt. 233; Moran v. Brent, 25 Gratt. 104, and note: Kendrick v. Whitney, 28 Gratt. 646, and note: Horton v. Bond, 28 Gratt. 815, and note. Rohrer v. Travers, 11 W. Va. 155; Scott v. Ludington, 14 W. Va. 387: Christian v. Cabell, 22 Gratt. 82 Lipscombe v. Rogers, 20 Gratt. 660; Wash., etc., R. Co. v. Alex., etc., R. Co., 19 Gratt. 617: Carroll Co. v. Collier, 22 Gratt. 310: Pairo v. Bethell, 75 Va. 831; Alexander v. Howe, 85 Va. 201, 7 S. E. Rep. 248; Muller v. Stone, 84 Va. 838, 6 S. E. Rep. 223. Insurance Security.-A building association has not an insurable interest in the life of a member who is in no wise indebted to it. Nor can the company defeat the claim of the assignee of such member by confessing judgment in favor of another creditor. Tate v. Bldg. Ass'n, 97 Va. 82, 33 S. E. Rep. 382. IV. USURY. The legislature may create a corporation with power to make contracts contrary to existing usury laws. But the courts have no such power. The power that erects may remove. Art. I. § 6 of the Bill of Rights has no application to such case. Smoot v. Bldg. Ass'n, 95 Va. 686, 29 S. E. Rep. 746; Town of Danville v. Pace, 25 Gratt. 1; Bosang v. B. & L. Assoc., 96 Va. 119, 30 S. E. Rep. 440; Crabtree v. Old Dom. Bldg. Ass'n, 95 Va. 670, 29 S. E. Rep. 741; White v. Mech. Bldg. Fund Ass'n, 22 Gratt. 233; Archer v. Balt. B. & L. Ass'n, 45 W. Va. 37, 30 S. E. Rep. 241: Pfeister v. Bldg. Ass'n, 19 W. Va. 676; Parker v. U. S. Bldg. Ass'n, 19 W. Va. 769. See monographic note on "Usury" appended to Coffman & Bruffy v. Miller, 26 Gratt. 698. Building associations are authorized to adopt by laws fixing a minimum premium at which to award loans to their members, such premiums to be deducted from the loans in advance or paid in periodical installments. Archer v. Baltimore Building & Loan Ass'n, 45 W. Va. 37, 30 S. E. Rep. 241; Counselman v. Nat. B. & L. Ass'n. 97 Va. 261, 33 S. E. The locus solutionis determines whether the contract be usurious. If the by-laws show that the contract is to be performed in a state by whose laws the contract is valid, the contract will be deemed valid where made. Nickels v. People's Bldg. Ass'n, 93 Va. 380, 25 S. E. Rep. 8; Nat. B. & L. Ass'n v. Ashworth, 91 Va. 706, 22 S. E. Rep. 521; Ware v. Banker's L., etc., Co., 95 Va. 680, 29 S. E. Rep. 744; People's B. & L. Ass'n v. Tinsley, 96 Va. 322, 31 S. E. Rep. 508; Counselman v. Bldg. Ass'n, 97 Va. 261, 33 S. E. Rep. 603; Saunders v. Balt. Ass'n (Va.), 37 S. E. Rep. 775. V. REDEMPTION OF STOCK. A building fund association by the redemption of shares of stock acquires the right of property therein. The assignment thereof to the association is not an hypothecation for a loan, but an absolute surrender of them to the association, and consequently cannot entitle such assignor to participate in the final division and distribution. Mech. Bldg. Fund Ass'n, 22 Gratt. 233; Winchester Bldg. Ass'n v. Gilbert, 23 Gratt. 787; Cason v. Seldner, 77 Va. 293. White v. In this case the division was required to be made when the accumulated fund should be sufficient to pay on each of the unredeemed shares two hundred dollars; after the payment of all debts and liabilities of the association. Held, such an article of the association is not in conflict with § 7 of the statute under which the association was organized. White v. Mech. Bldg. Fund Ass'n, 22 Gratt. 233. VI. ASSIGNMENT OF SHARES. The assignment of his shares of stock to the association, does not release a member from his covenant, as a party to the articles of association, to make his regular monthly payments on stock, and on account of fines. Nor does a bond which obligates him to pay interest at six per cent. per annum on the sums actually received until the termination of the association render the transaction usurious. White v. Mech. Bldg. Fund Ass'n, 22 Gratt. 233; Edelin v. Pascoe, 22 Gratt. 826; Winchester Bldg. Ass'n v. Gilbert, 23 Gratt. 787. See monographic note on "Interest" appended to Fred v. Dixon, 27 Gratt. 541, and monographic note on "Usury" appended to Coffman v. Miller, 26 Gratt. 698. VII. WITHDRAWAL OF MEMBERS. The position of a withdrawing member is anomalous. He is not an ordinary creditor; he cannot compete with outside creditors. He is not a member, for he cannot take part in the affairs of the society. He cannot sue at all until there is money in the treasury legally applicable to the payment of his claim; and until that time the statute of limitations does not begin to run against him. If the association refuse to provide for such fund, he may ask for a receiver to wind up the affairs of the company. Andrews v. Bldg. Ass'n, 98 Va. 445, 36 S. E. Rep. 531. The terms of a member's withdrawal from a building association are governed by the constitution of the association. Though the language used in the constitution be inappropriate in a particular case, yet if the general purpose intended can be carried out, some of the details may be disregarded in order to effect the general purpose. Haigh v. U. S. Bldg., etc.. Ass'n, 19 W. Va. 792; Eastern Bldg. Ass'n v. Snyder, 98 Va. 710, 37 S. E. Rep. 298. VIII. IN GENERAL. Forfeiture of Stock.-One who has forfeited his stock by reason of nonpayment of dues, cannot dent to the ownership thereof when the company has waived such forfeiture. Nickels v. People's Bldg. Assoc., 93 Va. 380, 25 S. E. Rep. 8. Embezzlement.-One who as secretary of a building fund association receives and wrongfully appropriates its funds, cannot be heard, upon a criminal prosecution therefor, to contradict the legal exist. ence of such association. Shinn v. Com., 32 Gratt. 899; Pixley v. Roanoke, etc., Co.. 75 Va. 320: Crump v. U. S. Mining Co., 7 Gratt. 352. See note in 11 Am. & Eng. Corp. Cas., N. S., 398 et seq.; Nat. B. & L. Assoc. v. Ashworth, 91 Va. 706. 22 S. E. Rep. 521. Dissolution. In a suit to wind up the affairs and to collect and distribute the assets of the association. ing such as are alleged to have been illegally released from their obligations to the association. all the stockholders should be made parties, includ 255 to This is an appeal from a decree of the Circuit court of Alexandria county. The facts of the case, so far as it is material to state them, seem to be substantially *these: Sometime previous to June 1861, the Alexandria, Loudoun & Hampshire Railroad Company borrowed of insist on such forfeiture to escape the liability inci- the Exchange Bank of Virginia, at their office of discount and deposit at Alexandria, cuted their note, and at the same time, as ten thousand dollars, for which they execollateral security for the payment thereof, they deposited with the said bank fifteen Clarke county, in the State of Virginia. thousand dollars of the coupon bonds of The note was renewed from time to time till the 1st of June 1861, when the last note six months after date. That note, not havfor said sum of $10,000 was given, payable ing been paid at maturity, was protested mained unpaid. On the 12th day of July for non-payment, and has ever since re1866, the said bank, by deed of that date, assigned and conveyed all its assets George W. Camp, in trust for the purposes of liquidation, in pursuance of the act of the General Assembly, passed on the 12th day of February 1866, entitled "An act requiring the banks of this commonwealth to go into liquidation"-Acts of Assembly 1865-66, p. 204. At the time of the execution of the deed the note aforesaid was in possession of the bank, and passed to the trustee as part of its assets, together with the said coupon bonds, as collateral security for the payment of said note. After the execution of said deed, Burke, Herbert & Co., being holders of notes of the bank to the amount of $8,500, an arrangement was made between them and Camp, trustee in said deed, whereby it was agreed that the said notes should be surrendered by the former to the latter, in consideration of which the former should be allowed thirtythree and one-third per cent. on the dollar on the $8,500 of notes surrendered, and should have an interest in the said note of $10,000 to the extent of $2,833.33% and interest thereon, and that the former should undertake the collection of said note, retain the Cason v. Seldner, 77 Va. 299; Styles v. Laurel, etc.. Co., 45 W. Va. 374, 32 S. E. Rep. 227. See W. Va. Code 1899, §§ 25, 26, 27, 28, 29. 254 *Alex., Loud., & Hamp. R. R. Co. v. June Term. 1872, Wytheville. Negotiable Notes County Bonds Banks.-C, trustee 1. Same-Same-Jurisdiction. The transfer of the 2. Same Same Sale.-The mode of making county 3. Same Same Same-Notice of Time and Place. This case was argued in Richmond at the at the June term. *The case was heard before his appointment. 256 amount due themselves, and pay the excess to said Camp, trustee. Accordingly the said note of $10,000, *and the Clarke county bonds held as collateral security thereof, were transferred by the said Camp to the said Burke, Herbert & Co., for the purposes aforesaid. On the 21st of November 1868, in a suit pending in the Circuit court of the United States for the district of Virginia, in which William H. Ryan was plaintiff, and said Camp, trustee as aforesaid, was defendant, order was made appointing said Camp receiver of the said court in the said cause, and requiring him to take, hold, collect and distribute all the assets of the said bank, under the further direction and order of the an said court. It appears that this order was made after the aforesaid arrangement was made between Camp, trustee, and Burke, Herbert & Co., and after the said transfer by the former to the latter of the said note cause, but it is immaterial to state for what purpose. The answers deny the allegations of fraud made in the bill, and affirm the reality and bona fides of the transfer to Burke, Herbert & Co., as aforesaid. *They also deny that any tender had been made by the railroad company of payment of the note in bills of the bank. Camp, in his answer, also refers to the aforesaid order of the Circuit court of the United States, for the district of Virginia, appointing him receiver of the said court, and says that, in obedience to the said order, all the remaining assets and property of the said bank, which were at that time in his hands as trustee, came into his hands and were thenceforward held by him as receiver aforesaid. No evidence was taken in the cause, except an affidavit of Lewis McKenzie, president of the said railroad, which affidavit seems to have been read as evidence. It relates chiefly to offers which he says he made to pay the note in bills of the bank. It also states that "no authority, either verbal or written, was given to the said bank to sell the Clarke county bonds. They were left as collateral, neither party intending that they should be put in the market and sold, at the time of the loan, or at any time afterwards." for $10,000, and the Clarke county bonds as richest counties of the State, are secured by the first deed of trust on the Alexandria, Loudoun & Hampshire railroad, and offer an excellent opportunity for a safe and profitable investment. On the 28th of February 1870, a final decree was rendered in the cause, dissolving the injunction and dismissing the bill. No reason for the decree is stated therein, nor is any reference therein made to any opinion of the court. But there is an opinion of the court copied into the record, though it does not appear to have been regularly made a part thereof. It appears from that opinion, that the case was decided upon the last ground taken in the answer of Camp, that he had been appointed receiver of the Circuit court of the United States for the district of Virginia; the court being of opinion, that if the plaintiffs had any equities against the sale, they must go to that tribunal which had assumed and obtained complete jurisdiction of the property before the State court undertook to interfere with the sale. On the 8th day of January 1870, just one week before the day fixed for the said sale, the Alexandria, Loudoun and Hampshire Railroad Company obtained an injunction of said sale from the judge of the Circuit court of Alexandria county. In the bill on which the injunction was obtained, the plaintiffs claim the right to discharge their said note by the payment of bills of the said bank; aver that they had offered to make such payment, which was refused; and charge that the said note had been fraudulently assigned by said Camp, trustee, for the purpose of defeating their right of set-off or payment as aforesaid; and that the said note was still the property of said Camp, trustee, and subject to such right of payment on their part. They also state that the said note was renewed on the 1st day of June 1861, while the city of Alexan- 259 *Beach, for the appellant, insisted, dria was occupied by the troops of the 1st, That there being no special United States government, and all commu- agreement to confer on the bank the power nication was cut off and interrupted between to sell the security, it was not competent Alexandria, where the transaction took for the bank to sell, much less Burke, Herplace, and Norfolk, Virginia, the place bert & Co. Wheeler v. Newbould, 16 New where the bank was located, by the then York R. 392. subsisting hostilities; and they submit that all contracts made between citizens separated by the hostile lines are utterly null and void, and that the transaction before referred to was such a contract. Copies of the notice and advertisement aforesaid were exhibited with the bill. Answers were filed to the bill by the defendants Burke, Herbert & Co., and George W. Camp. An answer was also filed by W. M. Sutton, also made a defendant in the From the decree aforesaid, the Alexandria, Loudoun & Hampshire Railroad Company applied for and obtained an appeal to this court. 2d, If creditors had authority to sell without judicial proceedings, personal notice to redeem, and of the time, place and manner of the intended sale, must be given to the pledger. And no such notice was given in this case. 3d, If the bill was dismissed on the ground that Camp was acting as receiver of the court, and the plaintiff's redress was in that court, the court should have expressed in its decree that the dismissal was without |