116 Ga. 679 | Ga. | 1902
The Equitable Mortgage Company sued Mrs. Watson on a promissory note for the sum of $2,472.50, principal, and prayed for a general judgment for principal, interest, and attorney’s fees, and for a special lien on a tract of land which it was alleged had been conveyed to plaintiff to secure the debt. The defendant filed several pleas; one of them being that the debt was infected with usury, and that the deed was therefore void and the plaintiff was in no event entitled to the special lien prayed for. The plea of usury did not set forth the usury with that particularity required in pleas of usury where the amount of the usury reserved or paid is pleaded as a set-off, but there was a general averment that a stated sum had been reserved as usury, the purpose of the plea not being to set off the usury, but merely to avoid the deed. At the trial the defendant abandoned all of her pleas except that of usury, admitted a prima facie case for the plaintiff, and assumed the burden of proof on the plea just referred to. The trial resulted in a verdict finding in favor of the plaintiff for the principal and interest of its debt, but finding in favor of the defendant on the plea of usury, and denying the prayer for a special lien. The case is here upon a bill of exceptions sued out by the plaintiff, assigning error, upon the overruling of its motion for a new trial, which contains ,the general grounds and numerous special grounds.
This is the second verdict in favor of the defendant on the plea of usury. The admission of the defendant amounted to a confession of judgment for the principal and interest of the debt sued for, so far as the prayer for a general judgment was concerned. It was admitted that the averments of the plea were not sufficient to make the plea of usury good as a plea of set-off, but the plea was relied on solely for the purpose of attacking the deed. See, in this connection, Hollis v. Loan Association, 104 Ga. 318. We have carefully considered all of the special grounds of the motion for a new trial, and if there was any error in any of the rulings complained of, we are satisfied that none of them were of such a character as to have required the granting of a new trial. It becomes necessary,
The plaintiff introduced the following documentary evidence: (1) Application of defendant to the Atlanta Trust & Banking Company (hereinafter referred to as the Trust Comany) for a loan of $2,300, to which was attached an affidavit of defendant that all statements made therein by her to her agent, L. L. Ray, were true. (2) An agreement addressed to'the Trust Company, constituting it the agent of defendant, and authorizing it to negotiate a loan for $2,300 for five' years at 6fo per annum, payable annually, to be secured by deed to land, etc. (3) Certificate of deposit, certifying that plaintiff had deposited with the Trust Company $2,-' 012.50, “ payable only after certificate on back is properly signed by Mary M. Watson, to the order of L. L. Ray, agent for Mary M. Watson.” (4) A paper signed by defendant, certifying that she had signed a note for $2,472.50, secured by real estate, and authorizing L. L. Ray, her agent, to receive the money coming to her from the Trust Company; and papers showing that Ray had collected this money. (5) Papers purporting to be signed by defendant, in form of receipt, reciting that defendant had received from the Trust Company $2,472.50, “less commissions,” as agreed upon for loan obtained by it from plaintiff. Alonzo Richardson testified in behalf of plaintiff: In 1890 I was cashier of the Atlanta Trust & Banking Company, and negotiated this loan with the Equitable Mortgage Company. The application and agreement are for $2,-300 at 6 jo for five years. Instead of writing the note for $2,300, we negotiated it for $2^,472.50. We charged no commission on the additional amount of $172.50. This simply netted her $172.50
The following evidence was introduced by defendant in rebuttal : A son of the defendant testified that the signature to the receipt above referred to was not that of his mother. Interrogatories of defendant were introduced, as follows: “ How much money was paid over to you, if any at all ? I don’t remember; I don’t think I got a cent. If I got any at all, it was a very small amount.”
It is contended by counsel that the testimony of defendant’s husband alone demanded a verdict for defendant, and that this testimony is corroborated by the documentary evidence, and is not necessarily in conflict with the testimony of Eichardson, but, if this is not true, that the issue was between Eichardson and Watson, and the jury had a right to believe the latter in preference to the former. The evidence of Eichardson authorized a finding in
As has been shown, under the facts of the case, it was legally possible for the plaintiff to reserve a portion of the loan without making the transaction usurious. There are cases where the reserving of any sum by the lender would stamp the transaction as usurious, but this was not of that class. Whether there was usury depended on the exact amount reserved, and it was ineumbent on the defendant to show this amount, the transaction being free from usury on the face of the papers, and all presumptions being against the existence of usury. When the law requires an amount of money to be proved with certainty, this requirement is not met by
Judgment reversed, with direction.