54 Ala. 39 | Ala. | 1875
On the coming in of an answer, in term 1 time or in vacation, the court may on motion dissolve an injunction, if the bill is wanting in equity, or, if the answer contains a full and complete denial of the allegations, on which the equity of the bill rests. — 1 Brick. Dig. 677, §§ 546-47-48. The motion to dissolve, therefore, involves two inquiries— first, the equity of the bill — ascertaining that it has equity, are the allegations on which the equity depends, denied by the answer. An affirmative answer to either of these inquiries, compels a dissolution of the injunction.
The allegations on which the equity of this bill depends, are, that the complainants were laboring under a pecuniary embarrassment, and applied to' one of the defendants for a loan of money. That he let them have three bales of cotton, which he represented to be good in quality, at twenty-five cents per pound, which they converted into money, by a sale, realizing much less than the sum they contracted to pay for it. Good cotton at the time of the purchase, was not worth more than eighteen to twenty cents per pound. The purchase was on credit of about sis. months, and a note was given for the purchase money, with a mortgage on real and
The answers disclaim all knowledge of the pecuniary embarrassments of the complainants — deny that any application was made for a loan of money. Aver the negotiation was for a purchase of the cotton, and that it resulted in the sale at the price of twenty-five cents per pound, and an rinwilliiigness to sell for a less price, the defendant owning it having confidence in a rise in the market prices. It is positively denied that there was a loan, and positively affirmed that it was a sale, made in good faith, and not as a device for obtaining usurious interest.
To constitute usury, there must be the forbearance of a debt, or a loan of money, and the corrupt intent, to reserve for the forbearance, or the use of the money, interest exceeding that allowed by law.—Miller v. Bates, 35 Ala. 580; Thompson v. Jones, 1 Stew. 536; Ellis v. Bibb, 2 Stew. 63; Eley v. McClung, 4 Port. 128. The nature and substance of the transaction — the intention of the parties, is the matter to be ascertained. The form of the contract is material only, as it sheds light upon the transaction; for whatever may be its form, if the transaction is really a loan of money it is within the statute. A sale of goods may be, and has often been, a device to evade the statute against usury. When the transaction has taken that form, and is impeached as usurious, its true character is ascertained by determining _ from the circumstances attending it, whether the real intention of the parties was to buy and sell, or to borrow and lend. _ The owner of property has the right to sell for the best price he can obtain, without the hazard of having the sale avoided for usury; and when the form of the transaction is a sale, the party impeaching it, “must remove the covering from the transaction, and exhibit it as a loan of money.”—Leavitt v. De Lancey, 4 N. Y. 363. The case as exhibited by the bill and answer, stripping the bill of the allegations of the conclusions of the pleader, drawn as it must be presumed from the
The answers disclaim all knowledge of the pecuniary embarrassment of the complainants, deny any proposal to borrow, aver the only negotiation which was for a sale, and because of confidence, in a rise in the value of the cotton, an unwillingness to take a less price, than that complainants' agreed to pay. The answers thus deny every fact stated in the bill, which could tend to establish usury. It is urged, however, that the recitals of the mortgage indicate the contract was a loan, and that the seller had knowledge of complainant’s embarrassment. These recitals are that the indebtedness was for advances to make a crop, and complainants inability to
The ease of Miller v. Bates, 35 Ala. 580, is clearly distinguishable from this .case. In that case the proposition originally made, admitted by the answer, was for a loan of money, which was declined, and a sale of cotton proposed. The sale was made, each party ignorant of the quality of the cotton. The object of the buyer was to raise money, and this was well known to the seller. In the presence of the seller, the buyer makes a calculation, to ascertain the interest he would pay, if he bought the cotton, at the price proposed. These facts were admitted by the ansAver. No such admissions are found in the answer of the respondents. On the contrary, there is an express denial of any proposition for a loan, or of any other proposition, than of purchase, and a denial of all knowledge of the complainant’s pecuniary embarrassment.
The decree of the chancellor, dissolving the injunction is not erroneous, and must be affirmed.
The motion of appellants to expunge from the transcript, the matter which they complain is improperly incorporated therein, and that no costs be allowed the register for such portion of the transcript, is overruled. The transcript was filed in this court at the January term, 1872, was submitted for decision at the June term, 1872 ; a judg-.