9 Neb. 11 | Neb. | 1879
The only defense made in the court below was that of usury, and this was not sustained. The propriety of this decree seems to depend solely upon questions of fact, which, although there were no special findings, it is fairly presumable were passed upon by the district court. ' •
It is a rule of this court that the findings of inferior tribunals upon questions purely of fact will not be interfered with, unless found to be clearly'against the weight of evidence. And this rule applies to all' cases, whether they come here by petition in error or on appeal.
The evidence upon the question'of usury is not very conflicting, and we think not only supports the conclusion of the district court, but would hardly warrant any other. By it the following facts appear to be very clearly established:
First That the defendant Ereeman and W. H. Ashby were equal joint owners of the premises upon which the mortgage was subsequently given.
Second. That Ashby being desirous of converting his share into money offered to sell it for $350. Freeman became the purchaser at that price, for which he gave the note and mortgage now in controversy.
Fourth. At the request of Ashby, and to save the trouble of transferring them, the note and mortgage were made directly to Armstrong, from whom Ashby then received the price which he had agreed to take for them.
These appear to be the material facts brought out by the testimony, and we see nothing in them from which the vice of usury can be legally inferred. There is no testimony to show that the sale of these premises was a mere device to evade the law, or that it was any other than bona fide. Ashby fixed upon a price for his interest in the land which, for aught that is shown, was reasonable, and Freeman agreed to give it, executing his note and mortgage therefor. This consideration belonged to Ashby, and he was at liberty to dispose- of it as he pleased. He could retain, sell, or give it away. That he chose to sell it at a discount, which he had a perfect right to do, is no concern of Freeman. It is not shown that Armstrong had anything whatever to do with fixing the price which Freeman agreed to give Ashby for the land, or that he took any part in the trade between them.
Hnder the circumstances of this case we think Armstrong occupies the place of a purchaser of securities in the market, wherein, whatever may be the rate of discount, he cannot be subjected to the penalties against usury so long as he has not participated in any contrivance to evade the statute.
Such being the views of this court the judgment must be affirmed.
Judgment affirmed.
