8 Neb. 423 | Neb. | 1879
The action in the court below was for the foreclosure of a mortgage, and resulted in a general finding of all the equities in favor of the defendant Eberhardt, who alone had answered, and a judgment in pursuance thereof dismissing the case. The plaintiff has brought the case here by appeal.
The defense interposed by the defendant in his answer is, in substance, that the entire consideration of the several notes secured by said mortgage was usurious interest, exacted by the plaintiff in making to him a loan of money. It is alleged, and clearly established by the proofs, that in this transaction while Eberhardt actually obtained only $485.00, he gave in return securities as follows, viz.: One note- payable in five years for $500.00, and five interest notes for $50.00 each, payable in one, two, three, four, and five years respectively, and all secured by mortgage on the real estate in question. Also five other notes for $35.00 each, payable in one, two, three, four, and five years respectively, which were likewise secured by a second mortgage on the same premises; thus making the actual cost to the borrower for the money obtained by him something over seventeen per cent per annum for each year of the term which the loan had to run. As to these facts there is no dispute.
It also appears that the $500.00 note and the five $50.00 notes, which were taken nominally to one Byron Murray, have been fully paid, as'have also two of the $35.00 notes. The $35.00 notes and mortgage were given directly to the plaintiff, Prentis D. Cheney.
It must be admitted that the transaction was so shaped, and hedged about, as to make this claim appear to the superficial observer somewhat plausible; but we think enough is brought to light to show very clearly that, even if the money received by Eberhardt had come from Murray, he had confided the business of loaning it to the judgment and discretion of Cheney, holding him responsible for the safety of its investment. This much we think is plainly inferable from the testimony of Cheney himself. He says: “I gave Murray my personal receipt for the money, binding myself to get from Eberhardt the notes and mortgage on the land, and the abstract of title,\as promised in the application, and deliver the same to Murray as soon as possible, or to return the five hundred dollars in case I did not get the notes and security.” Again: “ I sent the five hundred dollars to Perkins in a bank check, to be handed to Eberhardt when the security was perfected, and abstract of title furnished, as provided in the application.” This man Perkins seems to have been the confidential go-between through whom Cheney transacted that part of the business done in Nebraska. o Cheney testifies further: “I strongly urged' Murray to accept the security and make the loan; and he was thereby convinced that the security was sufficient, and consented to make the loan.” * * * “I
Judgment aeeirmed.