67 Miss. 777 | Miss. | 1890
delivered the opinion of the court.
The appelleé exhibited his bill in this cause to cancel a conveyance made by him to appellant of a certain plantation and personal property, upon the ground that the same was obtained by the fraud of the grantee, and because of the usurious character of the consideration cited therein. Shortly stated, the averments of the bill are that appellant is a shrewd, designing white man, and appellee is an illiterate and confiding negro, who has through many years dealt with appellant, who was his merchant; that appellee, having confidence in the friendship and honesty of appellant, relied upon him to keep accurate accounts of their transactions, making only proper charges against him, and giving him credits fojyall payments or other matters to which he was entitled; that from year to year he bought goods of appellant, delivering to him large quantities of cotton to be credited on his account; that from time to time appellant would state to him the balances due, and cause to be prepared deeds of trust upon appellee’s farm and personalty as security, and appellee, relying upon the accuracy of the balances claimed to be due, would execute the instruments as requested; that in January, 1884, the last security of the series was executed by him, whereby he granted to a trustee the lands in controversy in this suit to secure the payment of a note recited therein to be then given for $8034.20; that in December, 1887, the appellant went to the residence of appellee and informed him that he (appellee) had become very obnoxious to his white neighbors, who, because of his ownership of property to a considerable amount, were unwilling for him to reside among them, and that some of them had written to appellant, warning him to close out his business with appellee, extracts from which letters appellant
The defendant answered the bill, denying all the material allegations thereof charging fraud and misconduct on his part except as to the matter of usury, which the answer admitted had been to some extent charged ; but - the defendant insisted that the conveyance was freely and voluntarily made by the complainant, without any of the fraudulent misrepresentations or conduct charged against defendant. He denies that on final settlement he stated to the complainant the amount of his indebtedness to him, but avers that, in consideration of the conveyance, he surrendered all claims against the complainant, and that, exclusive of usurious interest, there was more due than the value of the property.
A mass of testimony was taken by the parties, and on final hearing the court decreed cancellation of the conveyance, and directed an account to be stated between the parties. The cause was referred to a commissioner, with instructions as to the principles upon which the account should be stated • and, he having reported that there was due complainant the sum of $12,291.02, a decree was rendered in his favor for that sum, from which decree the defendant prosecutes this appeal.
The astonishing result reached by the commissioner and approved by the court, whereby the complainant, who believed himself to be indebted to the defendant in a sum exceeding $13,000, and conveyed his entire estate in discharge of the debt, is restored to the ownership of the property, and secured a decree against his supposed creditor for nearly the sum he claimed from complainant, demonstrates the .necessity of adhering to that rule of judicial pro
We have not the time to follow the testimony through the whole series of years. We can only -call attention generally to other matters in which errors have been committed. It appears that complainant had, during the years in which he dealt with defendant, a number of tenants and share hands, who were also customers of defendant. The accounts of many of these persons appear charged against the complainant in a lump sum, a portion of which were disallowed by the commissioner because of lack of evidence to show a contract on the part of the complainant to pay them. It is shown that the course of business was for these tenants or croppers to deliver cotton to complainant, to be by him applied to the discharge of their accounts. The testimony, we think, shows that the transactions were about those which usually are had between
The testimony falls far short of showing an inability on the part oí complainant to take care of his own interests, or to establish that childish confidence in the defendant so pathetically set forth in the pleadings.
That there are grossly excessive charges of interest, — double charges in one or two instances, — and failure to give some credits which should have been given, is well shown by the evidence; but this does not serve to release the complainant from the payment of the accounts of his tenants charged against him, and for which, from the facts in evidence, he presumably received their cotton. His obligation to pay these accounts springs, not alone from his promise evidenced by his note in which they are included, but from the payment to him of the sums by his employés and tenants.
The transactions sought to be opened extend through a number of years, and the evidence to support the particular items of settlement between the parties may have been lost by the lapse of time. The burden of showing the facts rests upon the complainant, and cannot be met by general and indefinite evidence. He must specify and point out the erroneous charges, and by direct and particular evidence relieve himself of the obligation which prima fade rests upon him to pay these accounts. He must shed light, and not darkness, upon the subject. It is not sufficient for him to raise a suspicion that indefinite credits, at uncertain times, have been omitted, or that transactions to which he assented at the time, upon sufficient con
Since the cause must, be reversed we think it best to re-open the account in so far as the additional credits claimed by the complainant, and in so far as it is sought to purge it of the accounts of the tenants and employés charged to the complainant. The facts disclosed suggest that the claim for improvements upon the defendant’s plantation is in many respects unfounded and exaggerated.
The remaining question involved is as to what extent the usury shown to have been charged affects the claim of the defendant. It is the settled law of this state that usury paid may be recovered back, either at law, or in proper circumstances in equity. Bond v. Jones, 8 Smedes & M., 368; Parchman v. McKinney, 12 Ib. 631; O’Connor v. Clopton, 60 Miss. 349; Warmack v. Boyd, 63 Ib. 488. It has not been decided whether, in suits to recover usury paid (suits upon executed as distinguished from executory contracts), the whole interest paid, or only the usurious excess may be recovered. Our statute declares that, “ if a greater rate of interest than ten per cent, shall be stipulated for in any case, all interest shall be forfeited.” Code 1880, § 1141. Where the proceeding is in equity, in reference to an executory contract enforceable m pais, the whole penalty of the statute is enforced, and all interest forfeited. Bond v. Jones, 8 Smedes & M. 368; Parchman v. McKinney, 12 Ib. 631; Chaffe v. Wilson, 59 Miss. 42; Boyd v. Warmack, 62 Ib. 536; Bank v. Fraser, 63 Ib. 234. In Bond v. Jones, the language of the court is broader than the facts involved, and seems to imply that the same rule is applicable in suits to recover back usury paid which applies when the defense is made to a suit on the usurious contract, and that in either case the whole interest is forfeited. But in that case, while the usury had been paid as such, and the suit was treated as one to recover back the money paid, its real object was to cause the payment to be credited upon the unpaid principal. The decisions of this court, beginning with Parch-man v. McKinney, are not in accord with the current of authorities elsewhere, in that it is here held that in a proceeding in equity to
We affii’m so much of the decree of the court as vacates the conveyance and directs the taking of the account. The specific instruction of the chancellor directing the commissioner to disallow the item of $614 charged on the account of 1878, and the item of April 11, 1884, charged as “invoice of goods, about $200,” is approved.
Except as specifically referred to in this opinion, the matters involved are not decided.
Reversed and remanded.