Jackson v. American Mortgage Co. of Scotland, Ltd.

88 Ga. 756 | Ga. | 1892

Bleckley, Chief Justice.

1. In New York the legal rate of interest is six per cent.; in Georgia it is seven per cent., and may, by written contract, be as high as eight per cent. In New York the taint of usury renders the contract void; in Georgia it leaves the contract valid except as to the amount of the usury. In both States titles to property executed as security for the payment of an infected debt are void. If the note sued on in this case is governed as to the rate of interest by the law of New York, it is void; if governed by the law óf Georgia, it is valid, and the plaintiff' was entitled to recover. Usury was set up as a defence, and to ascertain whether it existed or not, it was necessary to arrive at the intention of the parties as to the real situs of the contract, and as to-what State they had reference to in fixing the rate of interest. The note in suit was given for the principal of a loan, other notes having been given for the interest reckoned at eight per cent, per annum. The contract of loan from which the notes resulted was the one to be investigated; and, according to the evidence, that contract comprehended an agreement to secure the loan by a deed like the deed from Jackson to Sherwood. There was not one contract for making notes, and another for securing them by a conveyance, but a part of one and the same contract was expressed in the notes, and á part in the deed executed at the same time. For this reason, any light thrown upon the intention of the parties by the deed, one part of the general contract, may be combined with such light as is thrown upon their intention by the notes, another part of the general contract. As to the deed from Sherwood to the plaintiff, this was simply a link in passing the security from the borrower to the lender, just as was the indorsement of the notes by Sherwood a link in passing the notes, Sherwood being the agent of the plaintiff in making the loan and taking the security. There was no error in admitting the deeds in evidence.

2. There is no direct or express statement in the record that Jackson, the borrower, was a resident of Georgia when the loan was applied for and made, but the inference that he was is almost conclusive from facts which do appear, and there is no dispute, so far as we are aware, as to his place of residence. On January the 10th, 1888, at JBarnesville, Ga., he executed a writing by -which he empowered and authorized one Nelson, of Atlanta, as his agent to negotiate for him a loan corresponding in amount to the principal of the note declared upon in this action, on five years time, with interest at 8 per cent, per annum, payable annually at such place as the agent might name, the loan to be evidenced by Jackson’s note of the form used by the agent, the note and loan to be secured by mortgage or an absolute deed on Jackson’s farm in Pike county, Georgia, about nine miles from Rarnesville. The instrument stated that in case an absolute deed was made, the lender was to give bond to reconvey in pursuance of sections 1969, 1970 and 1971 of the Code of Georgia. It stated further that if he, Jackson, declined to accept the loan for any reason, he would pay the agent a commission at once. This instrument, it appears, was not delivered directly to Nelson, but was handed by Jackson to one Rogers, the local agent of Nelson at Barnesville. On the same day Jackson also executed in writing an application for the loan (to whom addressed does not appear), which contained a description' of the property offered as security. These papers, as the facts indicate, reached Nelson at Atlanta, and together with an abstract of title made out by Rogers, the local agent at Barnesville, were forwarded by Nelson to the Corbin Banking Company of New York. There the application was accepted by Sherwood for the plaintiff. Afterwards, on Februrary the 1st, 1883, Jackson, at Barnesville, in Pike county, Georgia, executed the note sued on, together'with others covering-interest on the loan, and also, as security, an absolute deed conveying to Sherwood, the payee of the notes, the farm above referred to. This deed was recorded in Pike county, Georgia, presumably on the day of its date, the record in the present case stating that it was recorded, and not referring such recording to any other date. The deed recited that it was executed to conform to sections 1969, 1970 and 1971 of the Code of Georgia. The notes and the deed were delivered to Rogers, who sent them by mail to Nelson at Atlanta, and it is infer-able that Nelson sent them to the Corbin Banking Company at New York, who there delivered the same to Sherwood and received from him the money constituting the loan. This money, after deducting commissions, they forwarded through Nelson and Rogers, or through Rogers alone, to Jackson, who gave to the Corbin Banking Company a receipt therefor. The notes were headed “ Barnesville, Ga.,” and named a rate of interest (8 per cent.) lawful in Georgia, but unlawful in New York. The deed was headed “Pike county, Georgia,” and dedared that it was executed to conform to certain sections of the Code of Georgia. On their face, therefore, all these writings purported to be of Georgia origin, and. they were in fact signed iu Georgia. Granting that all the intermediaries between Jackson and Sherwood were Jackson’s agents, and that there was no complete and final delivery of the notes and the deed until the Corbin. Banking Company put them into the hands of Sherwood in New York, yet to effectuate the intention of the parties and to accomplish the purposes of justice, such manual delivery there ought, on the doctrine of relation, to refer back to the time and place of signing the instruments. As the parties evidently intended to bring into existence Georgia notes and a Geoi’gia deed, the transaction as a whole may be looked at as if Jackson, standing in Georgia, had, by means of the three intermediaries, lengthened his arms so as to deliver the papers directly from his own hands to Sherwood, standing in New York. There was'no intention to make the notes effectual without making the deed effectual also. There was no intention to make a loan without having it secured both by notes and a deed. It was therefore impossible to accomplish the object without calling in the law of Georgia as to a part of the transaction. New York had no law which could make any contract conveying land situated in Georgia operative or obligatory. As the law of Georgia would thus be essential with respect to a part of the transaction, that law, if possible, ought to be applied to the whole. There was no intention to make a mere personal contract, but the scheme was to make one partly personal and partly confined by its very nature to a given situs, to wit the State of Georgia. There is no trace of any purpose or attempt to evade or violate the usury laws of New York. The manifest intention of the parties was to make a valid and binding contract, evidenced in part by notes and in part by a deed, in view of the laws of Georgia. We think they succeeded in so doing. Dugan v. Lewis, 79 Tex. 246, 14 S. W. Rep. 1024; Kellogg v. Miller, 13 Fed. Rep. 198. There was no error in overruling the motion for a new trial. Judgment affirmed