forced it through the act of its secretary, it was demanding usury in a manner unauthorized, and therefore it placed itself outside the protection of the statute; and the fact that it got more usury than it demanded in the by-law does not relieve the transaction of its illegality. We are cited to Endlich on Building and Loan Associations, section 411, but the citation does not support defendant. That author says that if the premium exacted was the result of fair competition, without reference to the illegal by-law, 'no bid being refused because below the established minimum, nor raised for the sole purpose of covering it,' the borrower has no cause of complaint. But in this case, while no bid was refused for the reason that it was below the rate named in the by-law, yet the bidders were advised at the outset that they would not be permitted to bid below that rate."

were

Defendants contend that even if the premiums 272 arbitrarily fixed, and charged arbitrarily with reference to the minimum premium by-law, yet the record does not disclose that the premium, together with the interest, could exceed the rate which McDonnell and defendant association could agree upon. But we are unable to concur in this view. The bonds in the case in hand drew, according to their provisions, six per cent interest per annum, which in this state is the legal rate, but which may be made eight per cent by contract. And so the former is generally termed the "legal rate," and the latter, the "contract rate." The statute (Rev. Stats. 1899, sec. 3709) provides that "usury may be pleaded as a defense in civil actions in the courts of this state, and upon proof that usurious interest has been paid, the same, in excess of the legal rate of interest, shall be deemed payment, shall be credited upon the principal debt, and all costs of the action shall be taxed against the party guilty of exacting usurious interest, who shall in no case recover judgment for more than the amount found due upon the principal debt, with legal interest, after deducting therefrom all payments of usurious interest made by the debtor, whether paid as commissions or brokerage, or as payment upon the principal, or as interest on said indebtedness." Defendant claimed, at the argument, that, as eight per cent may be legally contracted for, the statute when using the expression "with legal interest," meant the interest stipulated in the contract, provided it was within the rate which could be legally contracted for. We think not. The statute, in using the expression "legal rate of interest,"

meant the statutory rate which obtains in the absence of a contract. Usury avoids the contract as to interest, and the statute disposes of it by giving the creditor the statutory rate, and applying the overplus toward the payment of the principal debt: Arbuthnot v. Brookfield etc. Bldg. Assn., 98 Mo. App. 505, 72 N. W. 132.

In this case, as we have said, there was an illegal by-law 273fixing a minimum premium of ten per cent. There was no written application for either of the loans, and the only agreement in writing to pay interest is to be found in the bonds. So that any premium paid by McDonnell, however small, was usurious under the facts disclosed by the record. The ques-tion then presents itself as to how these matters are to be adjusted. As was said in Laidley v. Cram, 96 Mo. App. 580, 70S. W. 912: "If the premiums are treated as interest on the assumption that they were fixed arbitrarily instead of by free competition, the total rate per year of interest charged cannot be calculated on the facts before us; for, to do that exactly, the loans would have to run until the stock matured, while, to do it approximately, testimony is needed as to the time when it will probably mature": Robertson v. Association, 10 Md. 397, 69 Am. Dec. 145; Association v. Flach, 1 Cin. Sup. Ct. Rep. 468; Hagerman v. Ohio etc. Assn., 25 Ohio St. 186.

Plaintiffs challenge the constitutionality of the building and loan association statute upon the ground that said act, and particularly that section which provides that the premiums. bid in accordance with the requirements of the statute, shall not be considered as interest or render the loan usurious, violates that provision of the constitution which prohibits the legislature from passing "any local or special law fixing the rate of interest." But as we have indicated that the premiums bid were not in accordance with the requirements of the statute and therefore illegal, it is unnecessary to pass upon thequestion presented upon this feature of the case, and we must. decline to do so.

Plaintiffs complain in their brief that the trustee in the. deeds of trust was an incompetent person to discharge the duties of those positions because an officer in the association, but there is no merit in this contention. Nor is the assertion that he was not present at the time 274 of the sale of the property under the deeds of trust, sustained by the record.

There is no merit in the contention of plaintiffs that the sale of the property should be set aside upon the ground of

inadequacy of price. It is a well-established rule in equity that mere inadequacy of price, in the absence of other considerations, is no ground for setting a sale aside, unless it be so great and unconscionable as to shock the moral sense.

Bispham in Principles of Equity, sixth edition, section 219, says: "Ordinarily, inadequacy of consideration will be insufficient to set a bargain aside, or to justify a refusal to enforce its specific performance. Where, however, the inadequacy is so great as to 'shock the conscience' (which is the phrase usually employed) contracts may be rescinded. . . . . A case, therefore, of fraud from inadequacy of consideration, pure and simple, and unmixed with any other kind of fraud, is of very rare occurrence. Nevertheless, the rule must be considered as well settled, although rather by dicta than by decisions, that a transaction will be set aside if there is 'an inequality so strong, gross and manifest, that it must be impossible to state it to a man of common sense without producing an exclamation at the inequality of it.' The relief, however, in such cases is granted (it is said) not on the ground of inadequacy of consideration, but on the ground of fraud as evidenced thereby": Holmes v. Fresh, 9 Mo. 201. The doctrine thus announced is the well-settled law of this state.

Defendants contend that, as McDonnell was present at the trustee's sale, and interposed no objection thereto or to the manner in which the property was being sold, he and his heirs are estopped in equity, morals and conscience, from questioning the validity thereof. Upon the other hand, plaintiffs insist that no such defense is pleaded, and in order to be available as such this should 275 have been done. While the general rule is in accordance with plaintiffs' contention, it is not under all circumstances absolutely necessary that estoppel should be pleaded in order to be available as a defense, but like many other defenses it may be waived by the plaintiff in the case by proceeding with the trial of the case without objection as if the defense relied upon had been pleaded. This precise question was before this court in Price v. Hallett, 138 Mo. 561, 38 S. W. 451, in which Gantt, P. J., speaking for the court said:

"It has often been decided by this court that estoppel in pais must be pleaded: Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 235; Avery v. Kansas City etc. R. R. Co., 113 Mo. 561, 21 S. W. 90. It was so held on an objection to testi

mony in Bray v. Marshall, 75 Mo. 327. In Noble v. Blount,

Mo. 235, it was said there was neither a pleading nor evidence to justify such an instruction. It seems to us this doctrine has peculiar weight when invoked against the admissibility of evidence when no issue of estoppel has been tendered in the pleadings, or when an estoppel in pais is urged for the first time in this court, but where parties have permitted an issue of this kind to be raised by the evidence without objection, and have had full opportunity to try the issue, we are unable to draw a distinction between such a case and those cases in this state in which parties have neglected to file replies, and this court has held that it was too late after trying the case as if a reply had been filed to claim that the answer was admitted. Had a timely objection been made when this evidence tending to show an estoppel was offered as against Benecke, it would have been excluded, or the court would have permitted an amendment pleading such estoppel, but no such objection appears to have been made at that time, and now that the evidence has been heard and the instruction given upon it, we think it is too late to raise the question of pleading on that point."

The same rule applies alike in law and equity cases: 276 Guffey v. O'Reiley, 88 Mo. 418, 57 Am. Rep. 424. In that case, in discussing the doctrine of equitable estoppel, Sherwood, J., in speaking for the court, said: "The same principle is forcibly asserted in Wendell v. Van Rensselaer, 1 Johns. Ch. 344, where no statements were made, no active inducements held out, nor encouragement given by defendant who was grantee in the deed under which he claimed, but the grantor remained in possession, and from time to time sold portions of the land, and improvements thereon were made in full view of the defendant's residence, some of the purchasers being known to the defendant; and Chancellor Kent, when commenting on this state of facts and the acts of the defendant, said: 'He preserved a studied silence, and gave no notice to those purchasers, or to the world, of his title. After this, he cannot be perinitted to start up with a secret deed . . . . and take the land from bona fide purchasers under the testator' (i. e., Phillip Wendell, who had made the deed to the defendant). If the plaintiff had been present the next day, when the defendant's verbal contract with Hughes was consummated by purchase and deed, and had remained silent, there is no con

flict in the authorities that this would have estopped him as against the title of the defendant then and thus acquired. And his standing by and saying nothing, would have been regarded, in such circumstances, a holding out tacit inducements, or encouragements, to the defendant to purchase, or else as being so culpably negligent that it would amount to the same thing. . . . . For the estoppel may arise, as we have intimated, from misleading silence or passive conduct joined with a duty to speak': Bigelow on Estoppel, 492. . . . . This doctrine of equitable estoppel lies at the foundation of morals; especially concerns conscience and equity; under its benign rule, entitled as it is, like other equitable doctrines, to a fair and liberal application, fraud is suppressed, and honesty and fair dealing promoted; 277 conduct becomes equivalent to representations, and acts to direct statements. Such estoppels may be given in evidence, and operate as effectually as technical estoppels; they cannot in the nature of things be subjected to fixed and settled rules of universal application like legal estoppels, nor hampered by the narrow confines of a technical formula."

McDonnell was a director in the present De Soto Savings and Building Association from March, 1895, to 1898. knew defendant Hartnett, and that he was president of said "association," and trustee in both these deeds of trust at the time they were executed. He knew Mr. Brady, the secretary of said "association," and that he acted as auctioneer at the sale. He complained of neither of these matters in the amended petition. He knew that his property was to be sold under the deed of trust, before the sale, and he solicited Zelle Brothers, who held a third deed of trust for $3,000 on the property, to be present and bid. He and the officers of said "association" alone knew the facts making these loans usurious, if any such usury be held to exist. He was present at the sale, and knew (so he testifies) that in addition to Mr. Ryan, who was present and bid at said sale for said "association," there were two other bidders. Yet, in view of all this knowledge, John McDonnell stood by at the sale of his property, under his own deed of trust, and made on account of his default in payments, and made no protest against the same, or objection thereto.

Our conclusion is that the judgment should be affirmed as to the defendants Hartnett and Anderson, and reversed and remanded as to the defendant, De Soto Savings and Building