67 So. 395 | Ala. | 1914
Lead Opinion
Mr. Charles W. Collins,, who is now over 80 years of age, was at one time owner of a plantation consisting of several thousand acres of land and which was situated in the lime lands of Hale county. These lands were fertile and productive of those crops which are accustomed to be grown in what is known as the “Canebrake Section” of Alabama. A good many years ago Mr. Collins found that his extensive farming operations, through the changes which new conditions had created, had heavily, involved him in debt, and since that time his history, and the history of his lands, as shown by this record, have been the history of a section which is turning from large ownerships to small ownerships in land; the history, in short, of a section in which the large landowner is being eliminated and the small landowner is tailing his place. In his efforts to extricate himself from his financial embarrassments, Mr. Collins began to make sales of parts of his lands, and this policy was pursued until there remains to him something over 1,000 acres. This is, of course, a large tract of land; but its size is modest when compared with his former holdings.
In this state the usurer is forbidden interest, and the payments made by the debtor are credited upon the principals, both in actions at law and suits in equity, and without regard to who is the actor in the proceedings. This penalty was imposed by the Legislature upon contracts tainted with usury,, and it is, of course, the plain duty of the courts to inflict the penalty.
1. After Mr. Collins had thus been dealing with Mayer Bros, for several years, his financial situation and pressure from creditors indicated to him the necessity of, so far as possible, consolidating his indebtedness and of arranging a long loan. To' this end he employed an attorney to negotiate for him a loan for a large amount for a period of five years, the loan to be secured by a mortgage on his Alabama lands. Efforts were made to secure this money from some corporation engaged in the business of lending money, but these efforts were unsuccessful. Finally, Mayer Bros, agreed to lend Mr. Collins $24,956.43 on five years’ time,
The principal of $24,956.43, of the above' indebtedness, represented the following items: $2,200 claimed to have been paid to Davies & Bro. $2,600 claimed to have been paid to one Gage. $902.47 claimed to have been paid to one Metzger. $2,332 claimed to have been paid to one Marx. $1,102.21 claimed to have been paid to Davies & Bro. $660 claimed to have been paid to one Gilder. $500 claimed to have been paid to one Gilder. $751.81 claimed to have been paid to one Nelson. $878 claimed to have been paid to one Ernst. $1,465.75 claimed to have been paid to R. H. & W. C. Agee. $344.31 claimed to have been paid on a judgment. The balance of the $24,956.43, viz., about $1,219.88, was represented by the balance claimed by Mayer Bros, to be due them by Mr.Collins on his account with them, including usurious interest which had been charged to him by them and possibly one or two items which are not above enumerated as having been paid out by Mayer Bros, when this mortgage was made.
The members of the firm of Davies & Bro. were related to Mr. Collins, and if Mayer Bros, misled him as to the amount which they paid Davies & Bro. — or would in the future pay them — they are not in a position to take advantage of the rebate which they obtained from Davies & Bro.
4. There appears on the account of Mayer Bros, with Mr. Collins credited, as of November 8, 1901, a mortgage for $2,000, and on December 4, 1901, he is charged with, “To cash from bills receivable,” $2,000. We are satisfied from the evidence that the truth of this matter is that these two items refer to the same thing, and that they offset each other. We are not of the opinion that Mayer Bros, intended to be dishonest with Mr. Collins, and we think that the testimony of Mr. Bley furnishes a reasonable and truthful explanation of this debt and credit. Mr. Bley testified, in substance, that Mr. Collins made this mortgage for the purpose of raising a sum of money to pay certain pressing debts. These debts amounted, it was thought, to $2,000; but in reality they were, after the papers were executed and delivered, ascertained to be only $1,750. Mayer Bros, paid these debts, and- they appear as items on the account. The account had been credited with the mortgage for $2,000, and, to make the books speak the exact truth, the mortgage was charged back on the account, thus leaving the debt of Mr. Collins at what it really was, viz., $1,750.
5. Mayer Bros., we think, with the approval of Mr. .Collins, and at his request, paid to the attorneys of Metzger the sum of $902.47, which we have listed above. This sum includes an attorney’s fee and a large advertising bill; but Mayer Bros, had no interest in this mat
6. We agree with the chancellor, in his finding that Mr. Compton, who bought the mortgage for $24,956.43 from Mayer Bros., is not in a position to claim that Mr. Collins is estopped from setting up usury in his transactions with Mayer Bros. We make this announcement without going into the reasons for this conclusion after a careful examination of all the evidence in the case, and a discussion of the subject would simply involve a discussion of the evidence. The parties to the cause are familiar with the evidence, and a mere discussion of it at our hands would serve no useful purpose.
When the above agreement was made, a conveyance from C. W. Collins and wife to James F. Compton, reciting a consideration of $35,000 for the Manning Place, was prepared, and was signed and delivered by Mr. Collins to Mr. Compton. Thereupon Compton was placed in possession of the Manning Place and became its owner. Without- making a -.survey as contemplated in the above agreement, Mr. Compton, according to the testimony, paid to Mayer Bros. $5,000-on the purchase of the Manning Place and executed to' them his notes se
8. That the store 'account of Mayer' Bros, against Mr. CollinjS is tainted with usury is established by the case of Meyer Bros. v. Cook, 85 Ala. 417, 5 South. 147. In that case there was an agreement to pay more than the lawful- rate of interest, and we think the same character of agreement pervades the account of Mayer Bros, against Mr. Collins.
10. The record in this case is extremely voluminous, and in this opinion we have, after a careful examination of the record, undertaken to- express our views as to each question which has been presented to us. We presume that the views above expressed will furnish the chancellor with a sufficient guide during the further progress of the cause.
Reversed and remanded.
Rehearing
The court is of the opinion that the appellee should be taxed with all of the costs of this appeal.
Opinion modified, and application for rehearing overruled.