25 Ga. App. 222 | Ga. Ct. App. | 1920
(After stating the foregoing facts.)
Under the rulings in Croom v. Jordan, 20 Ga. App. 802 (93 S. E. 538), and West v. Atlanta Loan & Savings Co., 22 Ga. App. 184 (95 S. E. 721), the court erred in directing a verdict for the defendants. In the opinion in the Croom case Judge George said: “ It is insisted by the plaintiff in error that the mortgage executed .by him is absolutely void. The uncontroverted evidence is to the effect that the mortgage contained an amount as interest in excess of five per cent, per month. Under the law of this State such a contract is unlawful, and the act of reserving, taking, or charging a rate of interest greater than five per cent, per month for the loan or advance of money or forbearance to enforce the collection of money, is made penal. Section 3444 of the Civil Code and section 700 of the Penal Code would have the effect (nothing further appearing) to sustain the contention made by the plaintiff in error, and defeat the mortgage in this case, manifestly made in the face of the plain provisions of the law of this State, referred to above. However, the statutes and the decided cases of the
Applying to the facts of this case the principle announced in the foregoing decisions, the plaintiff would be entitled to recover the amount of the principal sued for and legal interest, after deducting the amount of usury incorporated therein; and the question as to the amount of the usury should have been submitted to the jury.
Judgment reversed.