70 Miss. 835 | Miss. | 1893
delivered the opinion of the court.
On its undisputed facts, this case is readily resolvable on elementary principles. These facts are, briefly, that the appellee, Dinkins, was indebted to Parker, the preferred creditor in the deed of assignment, computing and including usurious interest, in the sum of $1,620.93; that Parker is, by the terms' of the assignment, preferred for $1,550 only, and this latter amount is less than the principal debt due by the assignor, Dinkins, to Parker, with legal interest thereon.
The elementary principle is, that the debtor who has contracted to pay usurious interest, may waive his personal right to defeat a recovery of all interest, and that, responding to the voice of conscience, he may elect to do equity by paying the principal, with legal interest thereon ; and this is exactly what the appellee, Dinkins, has chosen to do. He has waived his personal privilege of defeating the collection of any and all interest, and has elected to pay a gross sum, which is less than the principal debt with legal interest. He has not preferred the payment of usurious interest, nor devoted property in the hands of his assignee to that purpose. Pie has only waived his privilege to defeat all interest, and elected to do what in equity he may — repay the sum of money borrowed and due, with legal interest thereon.
Affirmed.
Thereafter, Calhoon & Green, for appellant, filed a suggestion of error, accompanied by a calculation, with a view to showing that the debt of Parker preferred in the assignment was usurious. Counsel referred to the case of Dickerson v. Thomas, 67 Miss., 777, in support of the proposition that where there is a proceeding to enforce an executory usurious contract, all interest is forfeited.
delivered the opinion of the court in response to the suggestion of error.
We are of opinion that the preference of Parker in the deed of assignment for $1,550 only, was an effort on the part of the assignor to purge the debt thus preferred of usurious interest. In the calculations made by us on the former examinations of the record, we were of opinion that no usurious interest was to be found in the sum preferred. The superior arithmetical skill, however, of the counsel for appellant has demonstrated our error to the extent of ten dollars. But this mere error in computation will not invalidate the assignment; for in express, though involved and obscure terms, the assignee is directed to pay the amounts really due, if it shall be found that, by mistake, the amount of any debt has not been accurately stated in the assignment. The conclusion is irresistible that the assignor directed payment of Parker’s debt, purged of usury, as he mistakenly computed the debt and its usurious interest; and the assignee can and will pay Parker’s preferred debt only in that way and to that extent.
Suggestion of error denied.