
    CHARLESTON
    Aggleson v. Middle States Loan, Building and Construction Co.
    Submitted September 9, 1906.
    Decided December 18, 1906.
    Buildino and Loan Associations.
    A case governed by the, principles announced, in the case of Stuckey v. Middle States Loan, Building and Construction Company y decided by this Court on December 11th, 1906. (p. 140.)
    
      Appeal from Circuit Court, Tucker County.
    Bill by Thomas J. Aggleson against the Middle States Loan, Building & Construction Company. Decree for plaintiff, and defendant appeals.
    
      Decree Reversed. Bill in pant dismissed.
    
    C. O. Steieby, for appellant.
    K. D. Hbihonimus, for appellee.
   Cox, Judge:

This case in all of its legal aspects is similar to the case of Stuckey v. Middle States Loan, Building and Construction Company, a corporation, decided by this Court on December 11th, 1906. This case involves a building and loan association contract whereby F. L. Shobe obtained a loan of $250.00 from said Loan, Building and Construction Company on stock held by him therein, executing for the loan a bond secured by a deed of trust on a lot of land in the town of Thomas. Afterwards Shobe sold and conveyed the lot to plaintiff, Aggleson, who assumed payment of the debt of Shobe to the corporation as part of the consideration for the purchase of the lot. After paying the monthly installments to the corporation for a time, ho refused longer to pay, and afterwards filed this bill in equity in the circuit court of Tucker county, alleging that the debt was usurious and that the payments by him and Shobe were more than sufficient to satisfy the debt, and praying an accounting and a release of the deed of trust. Shobe answered the bill, but did not plead usury, or consent that the plaintiff might do so. There was not a novation of the contract or parties, or a release of Shobe, the original debtor. Under the circumstances presented, the plaintiff could not be relieved from the usury. Stuckey v. Middle States Loan, Building and Construction Co., supra. Counsel for all the parties, on the-26th of November, 1904, appeared in court and waived an order of reference and agreed in substance that if the debt be held usurious, there would be due the plaintiff from the corporation the sum of $94.25, with interest from the loth of November, 1904, and if the debt be held not usurious, there would be due the corporation from the plairitiff the sum of $168.64, with interest from the 19th of November, 1904. Thereupon the court held the debt usurious and entered a decree in favor of the plaintiff and against the corporation for $94.25, with interest and costs, from which decree the corporation appealed.

This case being controlled by the Stuckey case, the decree of the circuit court of Tucker county complained of is reyersed, and the amount of the trust debt “mentioned in the bill and exhibits, evidenced by the bond of the defendant Shobe to the corporation, dated the 26th of June, 1894, is ascertained and adjudicated to be $168.64, with interest from the 19th day of .November, 1904, until paid; and as to all other relief prayed for in the plaintiff’s bill the bill is dismissed. This decision is without prejudice to any right, remedy or proceeding on the part of the corporation for the collection of the debt the amount of which is here ascertained, or for the enforcement of the deed of trust securing the same.

Decree Reversed; BUI in part Dismissed.  