109 Ky. 240 | Ky. Ct. App. | 1900
Aerirming.
The original petition in this case was filed on the 6th day of May, 1896, by appellee, Katie G-. Ryan. She alleged that on the 7th day of May 1888, her husband, C. H‘. Ryan, borrowed from appellant $10,000, and executed his notes therefor, with interest at 6 per cent, from date; that these notes were secured by a’mortgage on several tracts- of land situated in Logan county, Ky., part of which, belonged to her and part to her husband; that appellant, at the- date' of the transaction, deducted and retained $410.12 of the money so borrowed, and actually paid over to, her husband $9,589.88; that the difference was usury charged on the loan in addition to the 6 per cent, stipulated for in the written agreement; and it is- claimed that this amount, with interest, should be refunded. ' She further alleges that in December, 1890, the debt having become collectible through default in the payment of interest, appellant brought suit upon the notes and mortgages on the 16th day of January, recovering a judgment for the full amount thereof, with interest at the legal rate, and for an order enforcing the mortgage lien by a sale of the property. It is further alleged that C. H. Ryan had, by an instrument in writing, which was duly acknowledged before the county court clefk, assigned his right to sue for and recover the usury embraced in this transaction to the appellee.
Appellant in the court below made the point that the husband of appellee was a necessary party to, the proceeding, and that the claim sued for was not assignable, so as to vest a right of action in the assignee. Subsequently an amended petition was filed, making C. H. Ryan a co-plaintiff, but his name was not inserted in the caption' of the amended petition. On the 2d day of January, 1897, appel-
It is averred that the payment of this $300 fee was in addition to the interest paid by Ryan at 6 per cent, upon the judgment, and that it was usurious, and that she ought to recover that amount in addition, to the $410.12 originally sued for. The circuit judge rendered judgment for the full amount of both sums, with interest, which we are asked to reverse.
The first point relied on is that the' claim for usury is not assignable so as to vest the right of action in the assignee, and that C. H. Ryan was never properly made a party to the proceeding. This point was made in Breckinridge v. Churchill, 3 J. J. Marsh., 11, and in the opinion delivered'by Judge Robertson it was held that the right to reclaim usury was assignable in equity. And we think the appellee could have maintained the action in her own name, on the written transfer made to her by her husband, without making him a party to the proceeding at all. But we think that he was
The next point relied on is that the agreement of January, 1891, under which Ryan paid the $300 attorney’s fee, is not usurious; that, if the payment of this fee was illegal, it was not because it was usury, but because it was against public policy; that the right of action to sue for this sum arose immediately on the payment thereof in January, 1891; and as the suit was not brought until May, 1896, and the amended petition setting up this claim was not filed until January 2, 1897, it was barred by limitation, which is pleaded and relied upon. To support this contention, we are referred to the cases of Gaar v. Banking Co., 11 Bush, 182, and Witherspoon v. Musselman, 14 Bush, 214. In the case of Gaar v. Banking Co., it was claimed that, as the bill was to bear 10 per cent, interest after maturity, and that, in addition thereto, the bank took their obligation to pay an attorney’s fee in event suit was brought on the note, the bank contracted for a rate of interest exceeding 10 per cent., and thereby forfeited all right to any interest under the statute then in force, authorizing interest to be charged at the rate of 10 per cent. It was held in that case that the agreement was to pay a penalty in default of payment —principal and interest before suit; that the contract might have been discharged, according to its' terms, at any time before the suit was commenced by the payment of the principal and the lawful interest; and that the forfeiture denounced by the statute was not incurred. In Witherspoon v. Musselman it was held that an agreement in a
In the case of Thomasson v. Townsend, 10 Bush, 114, which was an action on a note secured by a mortgage, “in which it was stipulated that, if the mortgage had to' be foreclosed, the borrower should pay all of the cost, including a reasonable attorney’s fee,” it was held that such an agreement was against public policy, and would not be enforced by the courts, if resisted by the defendant; and that, where they were to secure the payment of money, they would be relieved against upon a payment of the principal and lawful interest of the debt — referring to 1 Ch. Rep., 39, and Story Eq. Jur., 1314. There is no conflict in the conclusions réaehed in these opinions. The $300 attorney’s fee was paid to appellant as a consideration for forbearance on its part in the collection of its judgment for a period of six months, and for certain definite periods thereafter, if the maturing interest was promptly paid. This agreement is a contract for the continued use o,f money due to the appellant, and clearly covered by section 2219 of the Kentucky Statutes, and appellant was entitled to a judgment therefor.
Judgment affirmed.