112 Ga. 232 | Ga. | 1900
The First National Bank of Dalton sued four parties as makers, and J. C. McEntire as indorser, upon a promissory note payable to the bank. McEntire alone made any defense. The uncontroverted facts upon the trial were, that McEntire signed the note as a mere accommodation indorser; that the note contained a waiver of the benefit of the homestead and exemption laws, and that it
It has been held by the courts of last resort in a number of States that the penalties imposed by the national banking act upon national banks for taking or charging usury are exclusive. Bank v. Pratt, 115 Mass. 539; Davis v. Randall, Id. 547; Bank v. Brown, 72 Pa. 209; Bank v. Gurlinghouse, 22 Ohio St. 492; Wiley v. Starbuck, 44 Ind. 298; Bank v. Childs, 133 Mass. 248; Bank v. Myers, 74 N. C. 514; Oldham v. Bank, 85 N. C. 240; Higgley v. Bank, 26 Ohio St. 75; Parker v. Bank, 59 N. H. 310; Bank v. Littell, 46 N. J. L. 506; Bank v. Schwenk (Neb.), 64 N. W. 1073; Florence Railroad & Improvement Co. v. Bank, 106 Ala. 364; Slaughter v. Bank, 109 Id. 157; Hill v. Bank, 56 Vt. 582; Rockwell v. Bank (Colo.), 36 Pac. 905. If the law of this State, declaring a waiver of homestead and exemption to be void when it is part of an usurious contract, imposes a penalty or forfeiture for talcing or charging usury, then, under the numerous authorities above cited, it can not be applied when the creditor taking or charging the usury is a national bank. Under our State law, the creditor forfeits all right of enforcing the waiver, as a punishment for taking or charging usury. Why is it not, therefore, a penalty imposed upon him for so doing? It-is a loss of a valuable right, which he is made to forego by reason of the usury. It is a burden which the law places upon him, and it seems to be as much a penalty as the forfeiture of the whole interest imposed by the national banking act upon national banks for charging usury. Jackson, C. J., characterized it • as a penalty, in Cleghorn v. Greeson, 77 Ga. 343. On page 349 of the opinion, after saying that a waiver of homestead is in the nature of a quitclaim, as had been held in Tribble v. Anderson, 63 Ga. 55, he declared that “ This waiver of homestead and exemption, this quitclaim title, is also forfeited whenever the creditor seeks to set it up in order to collect any part of the debt, because the penalty of usury is the forfeiture of all interest over legal interest when sought to be collected anywhere out of any property of the debtor, and ’ the penalty of usury is also the forfeiture of any sort of title, warranty, or
Judgment reversed.