Colvin v. Blymyer

121 Pa. 582 | Pa. | 1888

Opinion,

Mr. Justice Clark :

The judgment note of 22 September, 1879, for $5,000, upon which judgment was entered 24 December, 1879, embraced no usury. Fully $5,000 was loaned by Brice to Blymyer, and this was the consideration of the note. The $800 note given afterwards, ostensibly as a bonus, was doubtless a device to evade the law; payments on that note were applicable to the original debt. On the 23 December, 1879, $100 was paid on this note, and when the judgment was entered on the 24 December, 1879, for $5,000, but $4,900 was owing upon it; therefore, although the note embraced no usury, the judgment confessed upon it did. On 30 January, 1880, $100 more was paid, and on April 1, 1880, the remaining $100; but the judgment was satisfied on the 12 January, 1880, which was before these two payments were made, and of course they could not be credited to a debt that was already paid. On the same day upon which the' judgment was satisfied, however, a new bond and mortgage in $5,000 were delivered by Blymyer to Brice, as a security for the same debt, and it is contended that the rule established in Campbell v. Sloan, 62 Pa. 481, and since followed in a long line of cases, must be applied. It is argued that as the $5,000 judgment embraced usury to the extent of $100, the taint attached to the consecutive securities growing out of that transaction.

The doctrine asserted in Campbell v. Sloan is undoubtedly correct, but it will be observed that Brice had obtained a judgment on the original security in this case. Judgment was entered for $5,000, disregarding the $100 paid on the day previous to its entry. This was conclusive, and the judgment could not be attacked collaterally even for usury: Rutherford v. Boyer, 84 Pa. 347. Upon payment of $4,900 the judgment of right should have been satisfied. If the plaintiff refused to allow a credit of $100 and the defendant desired to avail himself of it, he should have had the judgment opened; for, as long as it remained unopened and unreversed, the defendant was precluded from denying that he owed the debt exhibited by the record. The case, as respects this $100, is governed by Montague v. McDowell, 99 Pa. 265.

But the other two payments of $100 each were made after the judgment was satisfied, and after the bond and mortgage in suit had been executed and delivered. It is conceded that the bond and mortgage were given for the same debt as the judgment; it was a mere change of securities for the same loan, and the law would apply the $200 of usurious interest, paid after the mortgage was given, as payments on the debt which it secured. We are of opinion that the court erred in directing a verdict for defendant; the court should have instructed the jury that the defendant was only entitled to a credit for the two payments of $100 each, made 30 January, 1880, and 1 April, 1880, respectively.

The judgment is reversed, and a venire facias de novo awarded.