41 So. 84 | Ala. | 1906
The bill was filed for redemption from a mortgage executed on March 21, 1895, and also
Section 2630 of the Code of 1896 so amended the corresponding section of the Code of 1886 (1754) as to de clare that contracts for the payment of interest at a higher rate than that prescribed could not be enforced “either at law or in equity,” except for the principal. The; purpose and effect of this amendment or revision, whereby for the first time it was expressly declared that usurious contracts were not enforceable in equity as to any interest, were considered by this court in Lindsay v. United States Savings & Loan Co., supra, and it was there held by a majority of the court that the new provision had not accomplished the destruction of the equitable rule requiring the borrower, seeking relief in
We are of opinion the contention cannot be successfully maintained, and that it rests upon a misapprehension of the true principles involved. Under the law as it existed Avhen the mortgage Avas taken the agreement to pay usurious interest Avas illegal, and the mortgagee could not collect any interest, when employing the remedy by suit, either at law or in equity, if the mortgagor interposed the defense of usury. The contract stipulating for a greater rate of interest than eight per cent. Avas tainted Avith an evil and wrongful intent. — Hawkins v. Pearson, 96 Ala. 369, 11 South. 304. There Avas no contractual right to recover any interest, and that was so because the contract, to the extent of all interest was offensive to the policy and positive mandate of the law. Nor was the authority of the court of equity to impose terms upon a borrower seeking its aid conferred by statute, nor “exercised for the purpose of enforcing any contractual right.”- — Lindsay’s Case, supra. The rule that one asking equity must do equity Avas but the invention of that court of chancery for regulating its oavu procedure. “The poAver of the Legislature to prohibit courts of equity from applying the maxim in cases involving usury is undoubted,” as Justice Sharpe declared in the prevailing opinion in Lindsay’s Vase; and Ave do not -see that the Legislature OAved the mortgagee, claiming under a contract pro tanto illegal, any constitutional duty to preseiwe the rule of equity procedure for her benefit, to the end that she might realize the usurious interest, or even legal interest, by a sale of the mortgaged property under the power of sale. Redemption from a mortgage before foreclosure, upon paying the debt secured, has always been allowéd by courts of equity. The valid legal debt in this case was the prin
The mortgagee had no vested right in the rule of equity pleading and practice, and cannot complain that its abrogation by the law-malting power has enabled the mortgagor to have relief without paying any interest. The law existing when the loan was made and the mortgage taken declared the contract could not be enforced except as to the principal, and to that extent it has been enforced. This preserves all the mortgagee’s constitutional rights. The rule of equity practice was in no sense a part of her remedy. That the mortgagee was a widow, wiio loaned money to her brother-in-law, cannot alter the rules of law; and, if ho choose to seek redemption without paying any interest, the court is bound to declare that the statute authorized him to pursue this course.
No other contention is pressed for a reversal of the decree than that already disposed of, and, of consequence, the decree must be affirmed.
Affirmed.