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settlement of the affairs of said corporation, with and among the members and shareholders thereof, and the same being argued by counsel for said receivers and borrowing members of said defendant corporation, respectively, and considered by the court;
"The court rejects all of the plans of settlement suggested in the petition of said receivers, and now orders, adjudges, and decrees, and the said receivers are hereby advised and directed to wind up, adjust, and settle the affairs of said corporation defendant, and distribute the assets thereof among the respective members or shareholders of said corporation upon the principles and in the manner following, that is to say: In the settlement with members of said corporation who have borrowed money therefrom and secured the said loan either by a pledge of stock or by pledge of stock and mortgage on property, and who are now indebted to said association, the said receivers shall charge the said borrowing member with the amount of money loaned to him by said association, charging interest thereon from the date of said loan to the twenty-fourth day of July, 1895, at the rate of six per cent
per annum. And said member shall be credited with all sums of money paid in by him, whether paid as dues, fines, premiums, or in any other manner, and also with interest on all of said paym ents from the respective dates thereof until the said twenty-fourth day of July, 1895, and the sum so ascertained shall be deducted from the amount of the loan to said member by the association, and the balance remaining shall be the debt due and owing by said member to 312 the said association, and shall bear interest from the said twenty-fourth day of July, 1895, until paid at the rate of six per cent per annum, and be secured by the mortgage executed by said member to the association securing the original loan. And upon the payment of said balance so ascertained, with all interest thereon, the mortgage given as aforesaid shall be released and discharged by said receivers according to law.
"That the said receivers shall ascertain as aforesaid the amount due by each and every member or shareholder of said association, and shall notify him in writing of the same and demand payment thereof, and if the said amount due by such member shall not be paid within thirty days after service of said notice, the said receivers shall, in their discretion, proceed, either under the power of sale contained in said mortgage or by proceedings in the proper court having jurisdiction, to foreclose said mortgage and sell the property conveyed thereby upon such terms as to said receivers shall seem best or said court may prescribe. And in those cases where only a pledge of stock was made as security for
the loan, upon such default the said receivers shall, in their discretion, bring suit against said member personally to recover the balances due said association by him. Upon the ascertainment in the manner aforesaid of the balance due by the borrowing members to the association and the payment thereof, such borrowing member shall cease to be a member of said association, and shall be discharged from all further liability to said association, either as debtor or stockholder, and shall have no right to participate in the distribution of the assets of said association, but his stock shall be deemed canceled and surrendered.
"All sums of money collected from borrowing members as hereinbefore directed shall be held by said receivers and 313 applied by them, with all other assets of said association: 1. To the payment of costs, charges, and expenses of executing the trust of said receivership; 2. To the payment of the creditors of said association in full; and the residue thereof shall be distributed equally and ratably among the nonborrowing members of the association in proportion to the amounts paid in by them respectively upon the shares of stock held by them, including the interest upon said several payments from the average date thereof until the said twenty-fourth day of July, 1895.
“And the court doth retain this cause for further direction."
To the order of Judge Graham, the receivers and nonborrowing stockholders excepted and appealed.
This is a new question to us. But it seems to us that the parties have applied too much refinement to their theories of settlement, when one more simple, based on plain business methods, would be better. The receivers say, in their application for instructions, that the whole trouble grows out of the fact that all the parties interested are both stockholders and debtors to the concern; that if the debtors were not stockholders, there would be no trouble in adjusting the matter. This being so, it seems to us to be of easy solution, by first considering everyone having stock in the concern, whether as creditor or debtor, as a corporator: Endlich on Building Associations, sec. 527. Then, consider each member indebted to the concern as a debtor, and you have the condition of things that the receivers say, if it existed, there would be no trouble in adjusting the whole matter. It seems to us that there can be no trouble in the mind, separating the parties interested upon the line we have indicated. And if this is so, it would seem that the greatest trouble in the way of a settlement has been removed.
314 But there are other matters to be considered. On the 24th of July, the first receiver was appointed, and the corporation
ceased at that time: Endlich on Building Associations, sec. 528. This date is when the receivers' work commenced, and will be the dividing line between the work of the corporation and that of the receiver. Everyone who held stock in the concern on that day, whether as a borrowing or nonborrowing member, is a corporator, and must so remain until the concern is closed out, and will be subject to the burdens and entitled to the benefits according to his amount of stock: Endlich on Building Associations, sec. 528.
The capital of the concern will be the shares of stock it has issued, and which have not been redeemed. When redeemed in part, then only as to that part unredeemed, and any other available assets it may have. Its assets will be what money and effects it had on hand on the 24th of July, 1895, including, of course, what debts were then owing to the corporation. In making collections of the borrowing members, they should only be charged with the amounts they have received: Endlich on Building Associations, secs. 527, 528. And under our statutes, as construed in Rowland v. Old Dominion etc. Assn., 115 N. C. 825, 116 N. C. 877, and Meroney v. Atlantic etc. Assn., 116 N. C. 882, 47 Am. St. Rep. 841, these borrowing members can only be charged six per cent interest on the amounts they received from the time they received them, and are entitled to credits on the amount for all they have paid into the concern since they borrowed the money, whether it was called fines, penalties, weekly dues, or by any other name. The nonborrowing members will be entitled to have interest computed on the amounts due them at the rate of six per cent. The receivers should be fully empowered by order of court to proceed to collect in the funds of the concern, and to do any other necessary aot for the benefit of the concern, to employ attorneys if necessary, whose pay 815 must be fixed by the court. The appointment of the receivers of this insolvent corporation caused the debts and mortgages due the concern to mature, and they may be collected at once: Endlich on Building Associations, sec. 523. This rule only applies to insolvent building and loan associations, so far as we have been able to see. But we know of no law that will authorize the receivers to foreclose under the power of sale contained in the mortgages, as we see they were made to the corporation, and the corporation alone is empowered to foreclose by Bale.
At first we entertained some doubt as to whether we should review the judgment of the court below, and give instructions to the receivers. But as it seemed material, if not necessary to their work, we have gone as far as we thought we were authorized in doing: Beach on Receivers, sec. 259. But we must decline to give any instruction as to the distribution of the funds, until the receivers have them in-court. This, we think, is the wellsettled rule of equity. Therefore, the order appealed from will be modified and reformed in accordance with this opinion.
BUILDING AND LOAN ASSOCIATIONS_RIGHTS OF MEM. BERS.-This subject is fully treated in the extended note to RobertBOD V. American Homestead Assn., 69 Am. Dec. 152.
Neal v. Nelson.
(117 NORTH CAROLINA, 593. EXECUTION SALES.-EVERY PRESUMPTION 18 Indulged In favor of the regularity and validity of execution sales.
EXECUTION SALES-ADVERSE POSSESSION-COLOR OF TITLE.-A sheriff's return of execution showing a sale, a description of the land sold, the purchaser's name, and the payment of the purchase price, is such color of title as will, by adverse possession, ripen into a perfect title.
ADVERSE POSSESSION-WHAT CONSTITUTES.-A purchaser of land who has paid the price for which he bought, whether from a public officer under execution or from a private individual, and is in occupation of the land purchased, holds it adversely to all the world under any writing that describes the land and defines the nature of his claim. His holding, however, is subject to the registration laws of the state.
DEEDS TO DEAD PERSON-HEIRS.-A deed executed to one who is at the time dead, “or his heirs," is good, if his heirs can be identified, for the reason that he will take it living, and he has no heirs until his death.
DEED TO DEAD PERSON-WORDS OF LIMITATION.-A deed executed to a person not then living "and his heirs" is void, because the word "heirs" is a word of limitation and not of purchase.
STATUTE OF LIMITATIONS.-SUMMONS issued but neither docketed, nor returned served, nor followed by an alias summons, does not stop the running of the statute of limitations.
Action to try title. Plaintiff introduced in evidence a grant from the state to one McAnally and other evidence to show that it embraced the land in controversy. He also introduced a deed of this land from one Gentry, as sheriff, to W. Lash, Sr., bearing date November 2, 1869, and supported it by introducing an execution and a sheriff's return thereon showing a sale of the land and the purchase thereof by said Lash, Sr., on the date that such deed bears date. Lash went into possession of the land, November 2, 1869, and continued in possession until his death in De
cember, 1877. After his death, the land was allotted in partition to his daughter, Mrs. Powell Hairston. Mr. and Mrs. Hairston deeded the land to plaintiff October 11, 1887. This deed was recorded October 14, 1887. The sheriff's deed from Gentry to W. A. Lash, Sr., though bearing date, November 2, 1869, was not delivered until after the death of said Lash. It was then delivered by Gentry, who was still sheriff, to W. A. Lash, Jr., in January, 1878. The defendant introduced a grant of the land in dispute from the state to himself, dated February 2, 1881, recorded February 25, 1881, and testified that he took possession under this grant in January, 1885, and had been in possession of the land ever since. In March, 1884, defendant, Nelson, began suit for the possession of the land against Hairston and wife. Summons in this suit was duly issued, but never returned or docketed, nor was there ever any alias summons issued. Judgment for plaintiff, and defendant appealed.
Glenn & Manby, for the appellant.
A. M. Stack, Watson & Buxton, and Jones & Patterson, for the appellee.
400 AVERY, J. The plaintiff introduced in support of the deed made by the sheriff to W. A. Lash, Sr., on January 1, 1878, but bearing date November 2, 1869, "an execution and sheriff's return showing the sale of the lands and 401 purchase by” said Lash, “on the day this deed bears date.” The irresistible inference growing out of this statement is, that the return identified "the lands” in controversy and showed that W. A. Lash, Sr., bought. "The presumption is, that public officers do as the law and their duty require them to do”: Lawson on Presumptive Evidence, 58, rule 14. The law required the sheriff to make due return setting forth the amount of the bid and the fact of the payment of the money by the purchaser, and courts will act on the assumption that the return was true and that it reported the receipt of the money: Hiatt v. Simpson, 13 Ired. 72; Lyle v. Siler, 103 N. C. 261. It has been held that where the sheriff sells under execution, nothing more appearing, it will be presumed that he complied with the law by making due advertisement: Jackson v. Shaffer, 11 Johns. 513; Lawson on Presumptive Evidence, 56. Upon the same principle, until the contrary is shown, the law infers that he collected the amount of the bid and reported the fact with the name of the purchaser, which appeared on the return, as it was his duty to do. We have been led into this discussion probably by the omission to bring the execution and return as a part of the transcript, though it was sug