
    (Superior Court of Cincinnati.)
    Special Term — November, 1897.
    CATHERINE WARD v. THE NORTH FAIRMOUNT BUILDING & SAVING COMPANY.
    The constitution of a building association provided that withdrawal claims could only be paid in the order in which they had been filed.. B., a mortgagor, having purchased from a non-borrowing member his withdrawal claim which was’not yet payable, tendered the same in payment of his mortgage which was due and jiayable, but the association refused to cancel the mortgage. Held— That the action of the association should be sustained.
    The plaintiff, Catherine Ward, borrowed $2,000. from the defendant, and gave a mortgage to secure the same. Subsequently she purchased from Alto F. Klinke, a non-borrowing member,his withdrawal claim not yet payable,which was equal to the amount due on her mortgage, and thereupon gave notice to the association that she desired to pay off her mortgage with said withdrawal claim. The association refused to cancel the mortgage on the ground that the withdrawal claim of Klinke was not yet payable, inasmuch as it was provided in the constitution of the association, that members giving notice of withdrawal should be paid in the order in which they gave notice, and the time for the payment of the Klinke claim had not yet arrived. The plaintiff prayed that the defendant be required to cancel said mortgage.
   SMITH, J.

The plaintiff is not entitled to the relief prayed for. To allow her to pay off her mortgage with the withdrawal claim of Klinke before it is payable is, in effect, to, give the Klinke claim priority over those whose applications for withdrawal had been filed before that of Klinke: because the mortgage could not be paid off except by cash and to allow it to be paid off by the Klinke claim is to treat the claim as cash, in other words,to pay the Klinke claim before the applications which were prior to it have been paid. What is expressly forbidden by the constitution cannot be done by indirection, for in either event the result is a preference in time of payment which the constitution seeks to •prevent.  