| Ill. | Jan 22, 1885
delivered the opinion of the Court:
It is insisted the court erred in decreeing the sale of appellant’s homestead to satisfy the judgment. It is a mistake to suppose that the sale of the homestead was decreed. The decree only sets aside the conveyance to the wife, and directs that the sheriff proceed to sell the lands on the execution issued upon the judgment. In making the sale on execution, the sheriff will, as in the case of any other sale under execution, take the steps for preserving the benefit of the homestead which are prescribed in the Homestead Exemption act, and the decree herein should in no manner interfere therewith or affect the homestead right. Section 8 of the Homestead act, which is referred to, directing the course to be pursued in the case of the enforcement of a lien in a court of equity upon premises including the homestead, does not apply in this case. This is no case of enforcing a lien, but of removing a fraudulent conveyance void as to creditors, out of the way of an execution at law.
It is urged that there was usury in the loan. Of the original loan of $2000 it appears that the borrower received only $1900. The remaining $100 was paid to Snowhook,— $50 for passing upon the abstract of title and drawing up the papers, and $50 for two and one-half per cent commission. The note given for $2000 was at ten per cent interest, — the highest legal rate. The borrower did not apply to Snowhook for the loan, and the latter rendered no aid to the borrower in obtaining the loan. Appellee had herself advertised the money for loan, and the borrower made direct application to her, and she herself made the loan. All that Snowhook did upon which to found the charge for commission, was to approve the security. Appellee had loans to make. The mode was, she made the loans herself, and referred the borrowers to Snowhook to approve the security, and the charge for this service had been previously agreed upon between appellee and Snowhook to be two and one-half per cent commission. This would seem, then, to have been the proper debt of appellee, previously contracted, and the amount previously stipulated for between herself and Snowhook, and the payment of it by the borrower was equivalent to that increased amount pf interest being obtained by the lender in addition to' the highest legal rate of interest, and so usurious, under the decision of this court in Payne v. Newcomb, 100 Ill. 611" date_filed="1881-11-10" court="Ill." case_name="Payne v. Newcomb">100 Ill. 611. This is all of usury we discover in the transaction. The payment by the borrower for the examination of the abstract of title and making out the papers, was proper. The charge of usury in respect to the additional loan of the $700 we do not find to be established by the evidence.
So far, then, as the original note for $2000 entered into the $3000 note and deed of trust, the amount should be taken to be but $1950 instead of $2000, and only six per cent interest should be computed on the $1950. The result which follows is, not that the trustee’s sale or the judgment should, be set aside, but only that the judgment should be reduced in amount. The sum for which the property was sold at the trustee’s sale was less than the principal of the loan, so that there is no question that the amount which the property sold for was due, and the trust deed gave power to sell the property to satisfy any amount that was due. The sale, then, was rightful, although the full amount of the face of the note might not have been owing, and there is no ground to disturb the sale on the latter account. The judgment is right, except that it is for too large an amount; but it may be corrected in that respect by reducing it to what is justly due after making the proper deduction on account of the usury. There is no need that the judgment be set aside.
The charge of appellant being lulled into security by the appellee, and that the foreclosure sale without notice to the former was fraudulent, we do not find to be supported by proof.
For the error indicated in respect of usury, the judgment of the Appellate Court must be reversed, and the cause remanded for further proceedings conformable with this opinion.
Judgment reversed.