28 Ill. 352 | Ill. | 1862
Lead Opinion
An examination of the reported cases shows a considerable conflict of authority as to who may take advantage in a contract or obligation infected with usury, some holding that none but an original party to the usurious contract, or, in case of his death, his representative, can plead the usury; while others allow the owners of the estate bound or incumbered by the contract, and even creditors, to insist upon the usury. But as that question does not legitimately arise in this cáse, we shall abstain from a review of these decisions, and from expressing an opinion on the subject.
Thompson, the original party to the usurious notes and. mortgage, and who has actually paid the usury which is now sought to be applied in satisfaction of the principal, is a complainant in the bill, as well as the subsequent mortgagees. These last might have been omitted altogether, but the joining their names as complainants with Thompson, does not impair his right to insist upon the usury. To the merits of this bill thus filed by Thompson and the others, the defendants answered, upon which issues were formed, without any question being raised as to Thompson having authorized the use of his name as complainant. The question was asked Aiken, during his examination, if Thompson had authorized the use of his name as complainant; to which he replied, that he did not know that he had. This attempt to prove that the use of the name of Thompson was unauthorized, was out of place and illegitimate at that stage of the case. Had the defendant intended to question Thompson’s position as complainant, he should have done so at a preliminary stage of the suit and in proper form, so as to have given Thompson an opportunity to come in and show the transaction, or the other complainants an opportunity to show that he had authorized the use of his name as complainant. When this testimony was taken, there was no issue before the court to which it could apply. By answering Thompson’s bill, he admitted it was properly filed and upon due authority. There was then no question before the court on that subject. It was a matter already admitted and determined.
If Thompson had paid usurious interest upon the loan to secure which the mortgage was given, he had a right, at any time before the final statement of the debt, or before it had been adjudicated upon by judgment or decree, to claim the benefit of such usurious payment. Suppose, instead of advertising the property for sale in pursuance of the terms of the mortgage or trust deed, Johnson had filed a bill to foreclose the mortgage, there can be no doubt that he could have insisted, under our statute, upon the usury paid, and had it applied in extinguishment of the principal; or had he been sued upon the notes, he could have availed himself of the same defense. Such is the settled construction of the statute in this court.
The only remaining question is one of fact. Does the proof show that the mortgage and notes were given to secure a usurious loan of money, and did Thompson pay the defendant usurious interest to the amount found by the court below and credited upon the principal sum ? We have looked into the testimony on that subject, and are satisfied with the finding of the Circuit Court. As a mere question of evidence, it would settle no principle of law which would justify us in swelling an opinion with a review and an analysis of the evidence. We shall therefore content ourselves with expressing our approval of the finding of the court below.
The decree is affirmed.
Decree affirmed.
Dissenting Opinion
dissenting. I am well satisfied, after a careful examination of the record and the authorities cited, that this decree should be reversed, and the bill dismissed. Had a demurrer been interposed in the court below, it ought to have been sustained. Proceeding to a final hearing on bill, answer and testimony, does not preclude a party, on appeal or error, from making the same objections which could be urged on a general demurrer to the bill, for that is always to the merits and in bar of the relief sought.
The bill was filed in the name of certain creditors of one Samuel Thompson, and using his name without any apparent authority so to do, and without his knowledge, as was proved.
Thompson has never sought to avoid the contract with appellant on any ground, and as late as April 29, 1860, he distinctly stated that appellant’s demand, on the 8th of the preceding March, was eight hundred dollars. Ho payments have been made since that time, but it appears, though not conclusively, that Thompson had paid a considerable amount of usurious interest to appellant on this debt of eight hundred dollars, which was due by note; and his co-complainants, having a deed of trust on the same property conveyed to Johnson to secure the payment of this eight hundred dollars, and which he is proceeding to sell under his trust deed, claim such usurious interest should be rebated from the amount of the appellant’s claim, and thus relieve the property from so much of the incumbrance.
¥e have decided, after solemn argument and most mature consideration, that a party who has voluntarily paid usurious interest cannot recover it back in an action at law. But a payment is an end of the matter, so far as the statute is concerned, and this decision has been reiterated, at this term, in the case of Tompkins v. Hill.
If, then, a party cannot at law recover back money paid on a usurious contract, I do not see how it can be done in any other manner. Thompson paid the interest voluntarily, and has never, and does not now, complain of it. How, then, can his co-complainants have it deducted from the amount of appellant’s claim ? If they can, it would be virtually overruling the decisions I have cited. I do not think the cases cited by appellees apply. They all arose under statutes declaring a forfeiture of the whole debt for usury. That is not our statute, and if we should affirm the decree in this case, we would wipe out the decisions we have so lately made, as having a contrary bearing. I think the decree should be reversed.