86 Iowa 527 | Iowa | 1892
On the twenty-third day of October, 1885, the plaintiff made his promissory note for the sum of five thousand, four hundred and seventy-two dollars and fourteen cents, payable six months after its date, to the defendants, Dickerson & Wood, with interest at the rate of ten per cent, per annum from November 30, 1885. It was secured by one chattel and one real estate mortgage, executed on different dates. The note was given in renewal of one which the plaintiff had made to Dickerson & Wood on the tenth day of November, 1884, for the sum of five thousand, five hundred and forty-one dollars and sixty-six cents. That note was also payable six months after its date, bore interest at the rate of ten per cent, per annum, and was secured by a chattel mortgage. On the twenty-third day of December, 1887, the plaintiff made to Dickerson & Wood his promissory note for the sum of eight hundred and twenty-eight dollars and thirty cents, due four months after its date, with interest after maturity at the rate of ten per cent, per annum. To secure the payment of that note, the plaintiff at different times executed three chattel mortgages.
After the action was commenced, the bank attempted to foreclose a chattel mortgage out of court, but on the petition of the plaintiff the foreclosure was transferred to the district court. The bank holds a note given to it by the plaintiff on the twenty-third day of October, 1885, for the sum of four thousand, four hundred dollars, with interest thereon at ten per cent, per annum from November 22,1885, which is secured by a mortgage on certain real estate. It also holds a note made to it on the eighteenth day of January, 1888, by the plaintiff, for the sum of two thousand, one hundred and sixty-one dollars' and twenty-one cents, payable on the tenth day of May, 1888, with interest thereon at ten per cent, per annum after that date. To secure the payment of that note the plaintiff executed to the bank a chattel mortgage. The bank demands judgment for the amount due on its notes, and asks for the foreclosure of its mortgages.
The plaintiff claims that these notes are usurious, and that they have been paid. He also claims damages caused by the negligent and improper treatment of live stock taken under chattel mortgages, and the taking of live stock not included in the mortgages, for removing
The bank offered to continue to carry four thous- and dollars of the indebtedness of the plaintiff if he would pay the remainder which it held. He accepted the offer, and for the purpose of ascertaining the amount of money it was necessary for him to obtain elsewhere, he procured from the cashier of the bank a statement of his indebtedness. To that he made some additions, and when completed it showed that he needed five thousand, five hundred and forty-one dollars and sixty-six cents. That statement was taken to Dickerson & Wood, and, after some negotiations they took from the plaintiff his note for five thousand, five hundred and forty-one dollars and sixty-six cents, and gave him in exchange their check on the bank for that, amount. He deposited the check so received in the bank, and used the credit thus obtained in reducing, his indebtedness to the bank and in.paying amounts he-owed to other creditors. Neither the note thus given, nor the one in suit, given in renewal of it, provided for the payment of illegal interest, and, if either was usurious, it was because of an usurious consideration for the first one. The plaintiff, while not denying that he gave his note and was given a credit by, the bank as stated, insists that he did not in fact obtain a loan from Dickerson & Wood; that the entire transaction was merely a device to evade the law in regard to usury; and that the bank was the real, and Dickerson & Wood only the nominal, party in interest. As supporting his claims, he relies chiefly upon the following facts: That Dickerson was a member of the firm, and a
It is insisted by the appellant that the proceeds of the different notes which were placed to his credit on the books of the bank should be followed, and when it is found that such credits have been used, in whole or in part, for the payment of usurious interest, that the amount of such payment should be deducted from the note in suit. The theory of the appellant seems to> be that, as he had an account with the bank and its predecessor from August, 1873, to November, 1884, the crediting of the proceeds of the notes in that account so connected it with the notes as to make them
The amount of the forfeiture on account of usury is to be ascertained by computing ten per cent, per annum on the amount of the loan remaining after deducting therefrom payments made. Lombard v. Gregory, 81 Iowa, 574. The computation is to be made on the amount remaining due from the time it was borrowed, without regard to changes in the evidence of indebtedness. Drake v. Lowry, 14 Iowa, 127. It is also to be made as it would be between borrower and lender. Sheldon v. Mickel, 40 Iowa, 21. Payments made will be applied on the money first borrowed. It
- VI. The appellant, in his reply, asks some relief-in regard to redemption of his land from alleged sales thereof in foreclosure proceedings. There is nothing in the record before us to authorize the giving of the relief asked. The decree of the district court is modified and appirMed.