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join under the statute, is void if it purports to be signed by both husband and wife, but is in fact signed by her alone while she is living with her husband: McAnulty v. Ellison (Tex. Civ. App.), 71 8. W. 670; yet, it is also true that a husband joins with his wife in the execution of a deed of her property, under a statute providing that a deed so joined shall bind the wife, by her signing bis name to the deed by his authority, although he does not acknowl. edge it before the proper officer: Dean v. Shreve, 155 Ill. 650, 40 N. E. 294

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MCDONNELL V. DE SOTO SAVINGS AND BUILDING

ASSOCIATION.

{175 Mo. 250, 75 S. W. 438.) BUILDING AND LOAN ASSOCIATIONS–Usury.--By-laws of a building and loan association fixing a minimum premium, greater than the legal rate of interest, at which loans may be made, are inconsistent with a statute requiring free and open competition in bidding for loans, and render a loan made thereunder usurious, although a larger bid is made therefor than the usurious rate arbi. trarily made by such by-laws. (p. 602.)

INTEREST–Usury-"Legal Rate''__"Contract Rate."statute relating to usury and using the expression “legal rate of in

means the statutory rate obtaining in absence of a contract fixing the rate, and not the rate which may be legally contracted for. The words therein, "contract rate," mean any rate above the “legal rate” which may be legally fixed by contract. (p. 604.)

CONSTITUTIONAL LAW.--Courts rust Decline to pass upon the constitutionality of a statute under consideration unless it is necessary to do so to properly dispose of the question presented for determination. (p. 605.)

TRUSTEES in Deeds of Trust.-An Officer of a building and loan association may legally become a trustee in a deed of trust given to secure a loan made by such association, (p. 605.)

FORECLOSURE SALES.—Inadequacy of Price, in the absence of other considerations, is no ground for setting aside a foreclosure sale under a deed of trust, unless it is so gross and unconscionable as to shock the moral sense, (p. 606.)

ESTOPPEL IN PAIS —Waiver.-Although an estoppel in pais must generally be pleaded as a defense, such defense may be waived by the plaintiff in the case by proceeding with the trial without objection as if such defense relied upon had been pleaded. (p. 607.)

BUILDING AND LOAN ASSOCIATIONS-Usury--Estoppel to Plead.--Although under a by-law of a building and loan association a loan made by it is usurious, yet if property covered by a deed of trust given to secure such loan is sold under foreclosure for default in payment of interest and premium dues, and the mortgagor

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solicits others to attend the sale and bid on the property, and himself attends and makes no objection to the validity of the loan or the manner of sale, he is estopped from setting the sale aside and the purchaser thereat takes title. (p. 608.)

J. J. O'Donohoe, for the appellants.

Campbell & Thompson and T. E. Ralston, for the respondents.

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237 BURGESS, J. This suit was instituted by John McDonnell and Catherine McDonnell, his wife. Since the suit has been pending in this court John McDonnell died, and the suit was duly revived in the name of his heirs and the administrator of his estate. The purpose of the suit is to have canceled and set aside two certain bonds and two deeds of trust securing the same, executed by McDonnell and wife, to defendant Hartnett, 258 as trustee of the De Soto Savings and Building Association, as well as the sale of the property described in the deeds of trust by said trustee, and the deed by him to the defendant Anderson,

The petition is in two counts. In the first count it is alleged in effect that on the tenth day of April, 1895, plaintiffs, McDonnell and his wife, borrowed of defendant De Soto Savings and Building Association the sum of $3,000, at the stipulated rate of fifteen per cent; that the premium for said sum was deducted and the balance of $2,550 was paid to plaintiffs; that this loan of $3,000 was on the 27th of August, 1897, secured by a bond and deed of trust on certain property on Bremen avenue, in the city of St. Louis, Missouri; that on the fourteenth day of May, 1896, McDonnell and wife borrowed of the defendant association, the sum of $13,000, at the stipulated rate of interest of six

per

cent per annum; that from this sum, fifteen and one-half per cent premium was deducted, and a balance of $10,985 was paid to McDonnell; that to secure the payment of said $13,000 loan, McDonnell executed his bond and deed of trust on the same property on Bremen avenue. The petition then recites that from the tenth day of April, 1895, when the first payment on stock and interest was made, until the 19th of May, 1899, when the last payment on stock and interest was made, McDonnell paid to the association the sum of $5,795. That since the 10th of April, 1895, McDonnell has been the owner of eighty shares of the stock of said defendant association, which stock, together with the earnings, profits, and dividends "aggregate a sum the exact amount of

Am. St. Rep., Vol. 97-38

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which is unknown to plaintiff, but which should have been applied by said association to the payment of the loans aforesaid.” That in said deed of trust Joseph P. Hartnett was made trustee, and that in said capacity he offered the property described in said deeds of trust for sale on the eighteenth day of July, 1899, and sold it to Lorenzo E. Anderson for the sum of 259 $13,100, and executed to him his deed as trustee therefor; that said property was of the value of $55,000 on the day of sale, and that plaintiffs had made all legal payments to the association that could be demanded, and were not delinquent at the time of the foreclosure under said deeds of trust.

The petition then closes with a prayer for relief, which is as follows: "Wherefore plaintiffs pray that the bonds aforesaid be delivered up to plaintiffs to be canceled; that said deeds of trust be ordered canceled on the records; that a general accounting be taken between plaintiffs and defendants

, and the amount due defendants, if any, be judicially ascertained and determined; that defendants be ordered to pay to plaintiffs the difference between the actual value of said property and - the amount that plaintiffs owe defendants, if any be so found to be due them, and for their costs in this behalf expended; and for such other orders, decrees, and judgments as may be proper in view of the premises."

The second count alleges that plaintiff borrowed from the association the amount stated in the first count, executed the bonds and deeds of trust mentioned in the first count; that the payments were deducted as alleged in the first count, and that plaintiffs had paid to the association the amounts stated in the first count. This count alleges that Joseph P. Hartnett, trustee in said deeds of trust "confederating with his codefend ants, De Soto Savings and Building Association, and Lorenzo E. Anderson, to obtain said property for their own use, and to defraud plaintiffs of said property and in pursuance of this fraudulent design, claimed that plaintiffs were delinquent in payments under said deeds of trust, and caused the real estate (lescribed in said deeds of trust to be advertised and sold under both deeds of trust, the same being purchased by defendant, Lorenzo E. Anderson, colorably, and not for value, but for a pretended consideration of $13,100, in order that he might 260 make such purchase, not for himself, but in reality for all of said defendants." The petition then alleges that the property was sold for a pretended consideration of $13,100, while the property was, at the time of the sale, and is now worth $55,000;

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that said sale was made on the eighteenth day of July, 1899, and the trustee's deed made, executed and delivered by the trustee to said Anderson; that at the time of the foreclosure sale plaintiff had made all payments that could be lawfully demanded, and that they were not delinquent. Then follows the prayer for relief: "Wherefore, plaintiffs pray that the bonds aforesaid be delivered up to plaintiffs for cancellation; that said deeds of trust be canceled ; that said sale be set aside and for naught held; and that the trustee's deed be canceled, and the title to said property be devested out of said defendants and vested in plaintiffs; that an accounting be had between the plaintiffs and defendants, and the amount found to be due, if any, by plaintiffs to defendants, be ordered to be paid, which plaintiffs are ready, willing and able, and hereby offer and agree to do, and for such further orders, decrees and judgments as may seem proper in view of the premises."

The De Soto Building and Loan Association and Lorenzo E. Anderson filed separate answers, but they are in all respects the same, except that the answer of Lorenzo E. Anderson differs from that of the association in this: he alleges that he bought said property not for himself or defendant association, but for the Wiggins Ferry Company.

Their answers allege that in April, 1895, plaintiff, John McDonnell was and for a long time prior thereto had been and that he continued to be until about July, 1898, a stockholder in the defendant association, and that until March, 1896, he was a director of said association. They then set out a number of the by-laws of the association, the section quoted having particular reference to the making of loans, and the foreclosure of 261 securities. They then recite that in April, 1895, John McDonnell was the owner of eighty shares of stock of the association; that he made application for a loan of $3,000, and having bid fifteen per cent therefor at auction, and being the highest bidder, said sum was knocked down to him by the defendant association, and was, less the premium, paid to said McDonnell; that to secure the payment of said sum, McDonnell gave a deed of trust on property on Prairie avenue, in the city of St. Louis; that in September, 1897, upon McDonnell's application, said loan of $3,000 was transferred from the property on Prairie avenue to the property described in the petition, on Bremen avenue, and that said bond and deed of trust on the Prairie avenue property were canceled and released, and the association took from McDon

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nell a bond and deed of trust to secure said loan of $3,000 on the said Bremen avenue property; that said $3,000 deed of trust has not been paid, and that there still remained due to the association on said loan, the sum of $2,415.56, which was paid out of the proceeds of the foreclosure sale hereafter men. tioned; that on May 13, 1896, McDonnell applied for a loan of $13,000 on his remaining sixty-five shares of stock, and at a meeting of the association held on that date, bid fifteen and one-half per cent therefor as premium at auction, and said sum was knocked down to him as the highest bidder; that the premium of fifteen and one-half per cent was deducted, and the remainder paid to plaintiffs; and to secure the payment of said loan of $13,000, plaintiffs executed a bond and deed of trust upon the Bremen avenue property; that thereafter plaintiff, McDonnell, continued to pay monthly dues and interest upon the two loans of $3,000 and $13,000 until he became delinquent; that commencing with August 11, 1896, McDonnell began to be delinquent in his payments upon account of his eighty shares of stock pledged as aforesaid, said payment being $80 per month dues and $80 per month interest; that the association was lenient with 262 him with respect to its right to foreclose, and allowed him a reasonable chance to pay up before finally proceeding to sell his property; that under the terms of section 9 of its by-laws, if the borrower "failed totally in his payments during the space of six months, or if the balance due by the borrower has been allowed to accumulate until it equals the sum of six months' dues and interest, then the board may, in its discretion, proceed at any time to advertise for sale, under said deed of trust, the property pledged to the association by such borrower.” That McDonnell had for the period of six consecutive months prior to the date of the sale thereafter mentioned, failed to pay the dues, interest, fines and other charges required of him by the by-laws, and had become indebted to the association in a sum equal to the gross amount of the dues, interest, fines and other charges for the period of six months upon both said deeds of trust; that. thereupon in pursuance of law, and the by-laws of said association, the board of directors of the said association requested the trustee named in said deeds of trust to proceed to advertise and sell said property described in said deeds of trust; that the sale was duly and legally advertised in accordance with the terms of said deeds of trust, for a period of twenty days in the "St. Louis Star," and on the 18th of July, 1899, the

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