21 Ga. App. 356 | Ga. Ct. App. | 1917
(After stating the foregoing facts.)
1. The Revised Statutes of the United States, as to national banking associations, provide as follows: Section 5197: “Any association may take, receive, reserve, and charge on any loan or discount, made, or upon any pote, bill.of exchange, or other evidences .of debt, interest at the rate allowed by the laws of the State, Territory, .or. district where the bank is located, and no- more, except ¡that where by. the laws of any State a different rate is limited for •banks of issue organized under State laws, the rate so limited shall be. allowed for associations organized or existing in any such State .under this Title. When no rate is fixed by 'the laws of the State, or Territory, or district, the bank may take, receive, reserve, or charge a rate not exceeding seven per centum, and such interest may be taken in advance, reckoning the days from which the note, bill, or other evidence of debt has to run. And the purchase, discount, or sale of a bona fide bill of exchange, payable at another .place than the place of such purchase, discount, or sale, at not more than the current Tate of exchange for sight-drafts In addition to the interest, shall not be considered as taking or receiving a greater rate of interest.” Section 5198: “The taking, receiving, reserving,., or. charging a rate of interest greater .than is allowed by the preceding .section,, wben. knowingly .done,, shall-be deemed a for-
The acts of Congress providing for the creation and operation of national banks, as construed' by the Federal courts, constitute the ultimate and paramount authority on this subject. Hansford v. National Bank of Tifton, 10 Ga. App. 270 (73 S. E. 405); Farmers National Bank v. Dearing, 91 U. S. 29 (23 L. ed. 196); Bates v. First National Bank of Dalton, 111 Ga. 757 (36 S. E. 949); First National Bank of Dalton v. McEntire, 112 Ga. 232 (37. S. E. 381); Reese v. Colquitt National Bank, 12 Ga. App. 472 (77 S. E. 320). In Haseltine v. Bank, 183 U. S. 134 (22 Sup. Ct. 51, 46 L. ed. 118), the Supreme Court of the United States said: “The definition of usury, and .the penalties fixed thereto, must be determined by the National Banking Act, and not by the laws of the State.” Thus, the act of Congress relating to the operation of national banks might have authorized them to charge a rate of interest' in excess
2-3. The gist of section 6198 of the U. S. Revised Statutes is to provide that the charging of usury by a national bank shall cause a forfeiture of the entire interest; and that where such illegal interest shall have been actually paid, the bank shall forfeit -twice that amount. Thus, the mere charging or stipulating for a usurious rate of interest, which has not been actually paid, causes a forfeiture of any interest in an action on the debt brought by the bank, while the actual payment 'of usury to a national bank renders it subject to an action maintained against it for twice -the amount of the entire interest paid. The questions, therefore, relating to the-second ground of complaint as set forth by the petition in the court below, are: 1st. Did the requirement that the borrowing bank should at all times during the period covered by the different loans keep and maintain on deposit with defendant a sum amounting to not less than $10,709.31, “which could only be used towards the payment of said indebtedness,” render the transaction usurious? And 2d. If so, could such consummated requirement be treated as such a usurious transaction as would not only prevent the recovery of all interest in an action for the debt brought by the lender, but one which could be taken as-such an actual payment of illegal interest as would authorize an independent suit maintained by the borrower to recover the prescribed penalty of twice the amount of all interest actually paid? Counsel for the defendant bank contend that under the pleadings the sum required to be left with it did not exist as a general deposit, such as would have passed the title thereto to the defendant and created the relation of debtor and creditor between it and plaintiff, but that the fund constituted a special deposit, or rather a “deposit for a specific purpose,” which had to- be held by- the defendantbank for-.that-particular'purpose only?- and- which-it
Turning now to our second inquiry, and treating the transactions between the parties to the present suit as being in fact thus infected with usury, was there such a payment of illegal interest byweason of such enforced deposit as would authorize a suit to recover the penalty of twice the amount of all interest actually paid? Bearing in mind that we are now dealing, with the trans
Judgment affirmed.