*1 et Brewer, ux. Syllabus. [146 Miss. replication, appeal, to sustained this on and, simply held that it was a error sustain demurrer replication distinctly alleged fraud. judgment of the court below will be reversed and the case remanded.
Reversed and remanded. et et ux. v. Brewer al.* (In Suggestion Banc. Oct. Error Overruled Nov. 1926. 1926.) [110 25377.] 115. No. So. Usuby.
1. up charged partially of balance on made Usurious interest usury. with former notes did not taint the first transaction Usuby. Attorney’s properly holder’s allowed on in notes by because maker cancel indebtedness cross-bill in action charges. of usurious Usuby. charge applied to must be allowed Usurious charged and collected. at it was time 4. Limitation of Actions. ordinarily lapse notes, although Usury charged barred offset, being pleaded time, properly due as debt could notes were still in existence. at time maker holder Etiibidqis part. JJ., dissenting Andebson, J., Smith, C. and. 22; p. 993, 39Cyc, p. 990, Juris-Cyc. Usury, n. *Corpus n. References: p. New; p. 90 New. n. n. county. chancery court of Carroll
Appeal from P. Chancellor. HoN. T. GuytoN, ag’ainst IT. Brewer and wife W. Ike Jones Suit Petty, wherein defendant Brewer trustee, substitute J. G. ap- plaintiffs cross-complaint. the decree Prom filed Sept., 1926] al. J et uos.v. ONES Appellants. Brief for peal, cross-appeals. and defendant Brewer Affirmed part, and remanded. reversed *2 Conger, appellants. Turner and E. E. 8. penalty, not a a eo nomine.
Tliis is suit to recover Com- 11 So. “When Auze, mercial Bank v. 74 Miss. 609, illegality only part of consideration a extends plaintiff’s present as in the demand, case; where illegal, only is as to inter- void, contract of transfer and apply pre- same miist est, must defense rule prevent recovery of all be- interest, vail so far as to illegal part of where consideration as to a cause is upon prevail to that demand, must extent the defense principle by defeated, action is the same which the whole by illegality of where the claim is rendered void entire 18; 14 & M. Robinson, et al. S. consideration. Coulter v. Hickman, Lewis Williams, 212; 29 Miss. v. Newman v. (Ala.) (Ala.) Bras- Bank, 377; 75 So. 46; 77 So. Blue v. 118 339, hear Miss. 69 So. case, ap- payments never barred the law
Usurious
are
they
paid.
plies
parties
are
as
the date
them for the
Polkinghorn
519.;
131 Miss.
95 So.
545,
Brewer v. Jones,
Miss.
v.
'59
366;
Wilson,
61 Miss.
Hendricks,
v.
Chaffee
Miss.
v.
368;
Cobb;
J
Mattock
15; Bend
ones,
Bank
We
Hem-
Hemingway’s
also section
Code. See
J
uoo.v.
Bbewes,
ONES
Appellee.
[146 Miss.
Brief for
(section
ingway’s
1906);
Code
Code of
section
(2681) Hemingway’s
Code.
and counterclaim. Barfed
can
set-
claims
Set-off
only
off
those not barred. The
is no
difference '
judgment ever can be
on a
claim.
obtained
barred
Set-
always
off
counterclaim
defenses are available
even
if
Bank
barred themselves.
Gambrill,
controlled
R. G. McBee, I. It is claimed that the was not interest earned for kept papers possession, the time that Jones in his figured, up after the same were drawn delivered *3 signature; him for this that interest amounts five dol- usury. lars and has tainted the entire transaction with agreement contemplates “If the a loan entire amount shall be available to the once, borrower at part fact mere that he leaves a thereof with lend- delay er for a paying time, or that brief a over him occurs, does make the transaction usurious in corrupt the absence of a intent to evade the law usury. Bishop (1900), App. Appleton Blair v. 90'Ill. 64; (1864), (Mass.) Bank v. 8 Fiske Allen 201; Leonard v. (1880), Neb. Gooo 10 N. 341, 289; 7 W. Muir v. Newark (1863), Eq. Sav. Inst. 16 N. J. 537; Bevier v. Govell (1881), Keyes (1858), (N. 87 N. 50; T. v. Moultrie Bosw. Y.) Geisberg Bldg. (1901, Tex.), 1; v. Mut. & Ass’n 60 S. W. 478; 12 A. L. B. 1423 Planters’ note; Bank v. Snodgrass, Smythe 4 How. 73; v. 67 Miss. Allen, 146..
II. This loan was not usurious because of section
Hemingway’s
chapter
2076,
Code,
Laws
137,
1914,
provides
loan
a
a
is
sum in ex-
usurious if
per
charged
cess of six
cent is
note
six
where the
shows
per cent on its face. This statute became effective March
1926]
et
al.
145
uos.v.
Beeweb
Sept.,
Appellant.
146
Brief for
present
February
loan
1914. The
was made
27,
20,
already
1914. The contract
made could not be affected
by any change in
law.
Murrell v.
40'
Jones, Miss.
Richard, City
565 at
v.
584;
Go.,
Lumber
IY.
with
Set-off
us
M. 418;
6 S. &
Hoover Commercial
Hoover,
phrey,
Go. v. Hum-
Philadelphia
Hire
810;
107 Miss.
Ass’n
v. Schel-
Eq.
lenger, 84 N. Y.
94 Atl.
615; Home
Co. v.
Ins.
Hartshorn,
91
Under section
So.
Hemingway’s
right
remedy
Code, both his
had
and his
n
expired.
deciding an
of fact
The court
issue
held that
separate
Cyc.
these were
and distinct transactions.
39
Dickey
1029;
600;
Riddle v.
103
v. Per-
Rosenfeld,
Ill.
Sturgis
Baltimore,
manent
Land Go.
Md.
App.
Nat’l
Bank,
Tex. Civ.
S. W. 678.
question
application
payments by operation
is not
set-off
has ño
law
of the law of
place
separate
in the transactions were
record since
Knights
Pythias
and distinct.
Brief for J. W. question by the court. character ones
“Is the of the maker of a note attorney’s fees here involved liable to the holder for provided part any where thereof, therein for or 146 Miss.—10.
146 JONES ua>.v. Appellant. [146 Brief for Miss. larger demanded of maker a sum holder has than maker in due, the true amount and the order to defend employ the claim of the holder at- forced torneys litigate question the amount due resulting judgment in a for holder for an amount than that claimed latter!” less As to nature stipulation attorney’s Granger, fees, Farits of a for see v. (N. S.) R. A. 716, 51 So. 27 L. Al- 503, 157; 96 Pomeroy’s Eq., 213; mand 95 Ga. S. E. Almand, 204, v. "Concerning Penalties.” 436, sec. per stipulated intended that the ten cent
It was never any except in allowed, ease he the event the should attorney placed note he in the hands of an maturity, upon pay- default in collection after and after ment.
In order for'the holder of these notes collect an at- torney’s any fee at all on it must be that account, stipulation therein meant that the fees be- contingency arose; came a when the is, debt hut it is in our state itself; settled liability not until the fees does attach contingency exact for has This con- arisen. tingency cannot he have under the facts held to arisen Zachary, of this case. Middleton v. So.
In Brahan was that the Bank, v. 16 So. decided per stipulated the fact that the ten cent valid garnished note while the debtor was and the fell due garnishment pending, note and the was collected attorney, cm the debtor of the relieve did Eyrich per ten v. See, cent commissions. also, Burlington, B. Bank, 615; 67 Miss. 6 So. B. Co. etc., Bey, (Iowa). v. 12 L. R. 436A.
Attorney’s
stipulated,
equit-
although'
are
fees,
A. L. R.
Burch,
able control of the court.
Graves
Freehold
See, also,
1216 and
there cited.
Am.
cases
27 R.
Land,
etc.
12 So.
Jefferson,
Rep.
Lindsey
22 Am.
Rill,
C. L.
Me.
242,-43;
*5
1926]
Sept.,
et ux. v.
147
Beewer
[146]
Brief
for
Appellee.
good
faith in
made
the bill
Tender was
offer
pay
might
to
whatever amount that
made
found to
delivered,
*6
question
The court’s
assumes facts which were not
by anybody
for
contended
when this case was submitted.
Brittain,
Bank Duncan
v.
545. It
seem,
would
question
propounded
that
however,
here
has been
definitely settled
this court in Burt Brashears,
v.
118
Granger,
also,
Parks
See,
v.
96 Miss. 50S;
Blankenship
sky,
Ray-
v.
143;
Water
S.
W.
Warder
D.
mond, 7
S.
64 N. W.
Almand,
Almond v.
Ga.
Counsel takes the that fees, stipulated, equitable are in the control the court, and a,s may penalties are disallowed under cir- disallowed, rendering inequitable recovery cumstances their or un- citing conscionable, Graves v. 5 L. R. Burch, A. jurisdictions. only decisions from a number of The Mississippi case he cites Am. Freehold & Mori. Land Go. v. Jefferson, 69 Miss. This case was before the court in Burt Brashears, 118 Miss. 340. The court distinguished that case. P. J., court. delivered
HoldeN, Ike Jones his wife instituted this suit chancery aganist enjoin seeking court H. Brewer, W. asking a trust, foreclosure deed for ac- counting par- in the different transactions between the years. running ties for back a number of Brewer filed asking an answer and cross-bill, the foreclosure of mortgage against his Jones and his wife and for the at- torney’s provided hearing in the note. On the upon cause the Chancellor merits, found in favor cross-complainant, except of Brewer, the to the as al- lowance favor of an offset Jones mortgage. amount claimed Brewer under Sept., 1926] J et ucc. Beewer ONES Opinion of tie Court. directly appeals, cross-appeals, and Brewer from decree of the lower court. substantially
The case is as follows: Jones borrowed four five from thousand hundred Brewer in 1914 dollars promissory being ten notes therefor, executed each fifty pins eight per in the sum four hundred dollars, cent, annually. interest, dne Most of notes were these paid maturity. unpaid, at of them Some remained subsequent notes and Jones execrated included unpaid the first therein the amount of the notes of trans- also *7 transaction first men- four thousand five hundred dollar tioned. also that Jones his wife were
The court ¡,in- held accounting in the final the sum to Brewer on debted fifty-two dollars two thousand three hundred about fifty which amount included cents, against The court notes the collection of the Jones. by- Brew- usurious interest forfeited held that the further as an offset notes should be credited er on the mentioned Brewer under amount due Jones upon in- usurious that no interest trust, deed of but be nor Jones should Jones terest should allowed interest the usurious allowed credit in- principal usurious time when the at the due of the charged reduce the thus collected and terest wás way in that Jones, amount due of the final ac- on the to Brewer reduce the amount allowed counting. the decree appellant, that contends Jones,
The main namely: wrong particulars, in three of the lower court et ux. Bsewe® Opinion [146 Miss. of the Court. that the court have him a First, allowed for- involving interest in the feiture first transaction fifty although the ten notes of four hundred each, dollars charged the interest on that transaction not usurious, in because some of notes that transaction been had subsequent eight in the notes included of one thousand seventy- and one thousand four hundred.dollars hundred given dollars to Brewer, in which the in- six terest was charge that usurious, and therefore the usurious subsequent
in the notes tainted all of the notes usury with in the first transaction, and that the court should have that the in first transac- interest tion was forfeited usurious. as proposition,
On this we hold that the Chancellor was charged in correct his view that the interest in the first transaction sequent the fact that sub- usurious; and
notes, transaction, a different bore usurious partially up interest, and because such notes were made of a transaction, balance from the first did not taint due infirmity usury. the first transaction with the taking taking first ten notes and the of the subsequent transactions, notes were different were found- ed on different fact some of considerations, subsequent *8 against (Jones) compelled him, he was to enter because against suit to cancel the him indebtedness because of charges, having’ usury the usurious he, and established charged compelled pay not he hill, as attorney’s the to the should in the of the
fees for Brewer collection bal- by of him the notes, that,' ance the amount due but just go his since he was to into court to secure forced Sept., 1926] al. et ux. v. Bbeweb. Opinion the Court.
rights against charges, the usurious he as legal provided pay the be made to services for in the may junc- Brewer. stated, in favor of It be at this notes any not tender amount nothing, ture, Jones did bili that his that he Brewer but contended and that, owed anything, owing willing pay him if he he was it was. upon by accounting. such the ascertainment point, this we think the
On Chancellor was correct in attorney’s allowing the in. the notes. cross-complainant, sought Brewer was affirmative in the collection of the notes relief foreclosure by mortgage, granted was which relief the lower brought court. mere fact Brewer that was into court (who partially m at the instance of Jones successful obligation pot complaint) his pay relieve Jones of the did by collection of the balance fees for the cross-complainant apprehend, below. Brewer, the We though unnecessary that decide, principal is if Jones had ten- by recovered the amount of the debt dered fees could have case, Brewer no been charged against for the collection of the balance Jones by Brashears, *9 a,l. et vac.v. Bkeweb et Opinion.
Concurring [146 Miss. opinion of the offered, at the time it we are Chancel- usury allowing against lor an offset was correct ordinarily Brewer, claim because while it would lapse yet by time, it have been barred pleaded he could as an because was a debt due to offset, Jones Brewer at a time when claim Brewer was in existence. Jones
In above conclusions, view decree cross-appeals lower court on both direct is affirmed, except part as to that of the decree denied right usury application the amount of the him to the at the time owed charge usury, and collection and to ex- the case tent the decree reversed and remanded for hearing, opinion. another in accordance with this part. aA%dreversed
Affirmed J.C. Smith, opinion in chief, concur in what has been said in the
I except-that opinion what in the relative to is referred to as the contention of Jones. third appearance of court, is the this case in this
This
second
appeal
on
former
will be
rendered
in 131
As
out in the
545,
found
“Jones the sum of four five borrowed thousand hun- February on defendant, dred dollars from the Brewer, promissory 25, 1914, his ten notes there- and executed fifty being for, dollars, each the sum of four hundred plus eight per interest on that is to due.; cent the debt cent, say, eight per the first interest note included January the four thousand five hundred dollars note interest on four thou- 1915, the second included January fifty January from dollars sand ” through series. 1916, and so paid been 'that all of these notes have admits except, notes. the last four collect, and his effort here is to Sept., 1926] Bbeweb, ux. v. JONES Concurring Opinion. allegations
According to the of the bill, col- lected from Jones Brewer on some of these *10 payment original held that a on one the of notes was payment original a on the .entire indebtedness, and di- to, usury by applied rected collected he ac- cordingly. When the evidence came in on the return of appeared usury the case to the court below, it was by any original not collected Brewer on of the notes, being facts when the first of these notes, which sixty was for the sum seven hundred dollars matured, payment thirty Jones made a it of on one hundred dollars up by took the note the execution of a new note for eight the sum of one thousand hundred which in- dollars, money cluded the balance due on the note, additional old by then loaned Jones two other debts not Brewer, con- nected with the four five thousand dollar debt hundred due from Brewer, Jones to interest. When the sec- original ond of the notes, which for seven was hundred seventy-four up by dollars, matured, was taken a new by note executed Jones one thousand four hundred seventy-four dollars, which a note, old new included loan, and interest. These two notes there- and interest paid by on were Jones.
The court held that below these two notes were tainted usury applied paid with all interest thereon to principal, overpayment by which in an resulted thereof Jones of several which dollars, hundred amount the court by against further held could he set off the four Jones original notes of which Brewer here seeks to series usury collect. No interest allowed on the by paid held to have been him. original (1) one of
His contentions here are: Since new series of notes was in each of the two embraced eight by *11 by overpaid the thousand that the eight Jones on one amounts hundred, one thousand four hundred dollars and seventy-four payments him on notes were dollars unpaid notes of debt, to-wit, another the and different holding, original in the if I am so debt, correct and, application payments, regulates of rule which of my this effect, branch in decide associates, application to Jones difference here. The case, has no overpaid by one thou- him the whether amounts eight hun- four one thousand hundred dollars sand payments seventy-four be notes are dollar dred al- are debt, or dollar on the thousand five hundred four may no con- by way here of. be of set-off, lowed to him application regulating sequence, the rule but whether applied in cases payments or of set-off materially may oases future in other and this character litigants. rights of affect the
(cid:127)Ethridge, (dissenting). majority hold- I from that dissent attorney’s fees. appellant ing that liable for is Sept., 1926] wo. v. Bbewer Dissenting Opinion.
146 Miss.] cent, provide per The notes “and ten additional as attorney’s placed if this note fees, is in hands of'an attorney for collection.”
The suit was filed his wife for an ac- counting, and set out in detail the several notes and the payments, alleged several that the notes were usuri- applied, ;ous if that, was it would more than pay outstanding notes, and that Brewer would be appellants money indebted to the in the sum of named in the bill. necessary
The facts stated in the bill that it show appellants for the to file a bill and have the court as- parties. certain the true state accounts between the placed attorney The notes were not in the hands of an prior bringing placed for collection but suit, were attorney purpose in the hands of for the of defend- ing securing judgment the suit such favor of might hearing. Brewer as the court award after the provision payment attorney’s in the note for the clearly contemplated that the fees were only paid placed to be when the notes were in the hands attorney by plaintiff of an before suit any was filed language contemplate the defendant. The does not adversary, fees to an where necessary adversary it is institute suit such to learn the state the account or the amount due. present distinguished
I think the from the case case Brashears, Burt v. 79 So. this: placed In that notes were the hands case, the attorneys any proceeding before there to collect the placed such notes were notes, trustee, and the after *12 attorneys’ direction of the attor the under the hands, given neys proceeded of trust to the deed -foreclose injunction whereupon payment, secure their liability prevent The had sued out to foreclosure. the already placing in the of the notes been incurred the injunction attorney prior suit, in said of to the hands the controlling opinion my in case is not and therefore ua>.v. Suggestion On of Error. L146 page here. The court in that case, at Missis- sippi Reports 183), (79 So. said: placed
“It conceded that the notes were the with law firm of Sillers and, Sillers for under collection, & attorney’s express the contract, fees became due ’’ payable aas of the note. In case us, the before the were not in hands *13 Sept., 1926] Neill. & Cla.uk. Fbanklin Syllabus. opinion attorney's
I am the that the allowance as contracted for the notes fees, is involved, ruled Brashears, case So. 182. Burt ought I think the unsound, Brashears case is to be majority overruled; but court has not voted consequently controlling it, overrule I think is point. Judge joins inme that the Bras- AwdeksoN ought hears case to be is unsound and overruled.
Overruled. Neill & Franklin Clark.* (Division 22, 1926.) B. Nov.
[110 26031.] So. 368. No. changing talcing appeal Law time Appeal one from and Ebror. year (Laios 1926, retrospective chapter to six months held not 153). 1926, chapter appeal changing Laws in which to su- time months, preme year prosecuted court must be from six one prospective effect, retrospective and not con- in its except trolling judgments approval, rendered before its prosecuted appeals therefrom must be within six months immediately following passage approval. 3CJ, p. Juris-Cyc. Appeal Error, *Corpus n. References: 19, 20. county. circuit court of Appeal from Sunflower Judge. F.S. Davis, Hon. Judg- Neill & Franklin and Clark. Action between Ed appeals. ment and the former On motion latter, appeal. to dismiss Motion overruled. appeal.
Brief of L. motion Williams dismiss supreme appeal court to the time within which an may prescribed by prosecuted of limita- the statute before were to be due—all counsel Am. Go. for the defense. Land' v. Jefferson, Freehold 464; Miss. 12 So. Purvis v. 69 78 Woockvard, Miss. 'Ragan, v. 89 Miss. 42 917; 29 So. Crittenden So. v. Fraser, Nat’l Ba/nh 63 Miss. 281; 231; Union Dicker- 788, 7 Thomas, Miss. So. 503. son v. 67 mortgage the notés were void for the amount (R. I.) Palmer, L. v. R. at 119' not due. 17 A. Moncrief Savings Bank, 114 Atl. Leivis v. Germania 181; Pac. Rep. Daily 32 Am. 88 Pa. Maitland, 86; appellee, response request , to for McBee, R. C. court. a note of the character the ones “Is maker of attorney’s the holder for the fee here involved liable to any part or the hold- thereof, therein for where larger maker true a sum than the er has demanded maker in amount and the order due, defend attorneys employ claim of the holder forced resulting question litigate as to due the amount judgment holder an than for amount less in a for that claimed the latter?-” opinion among diversity the courts as There is validity provision for fees. a note of a early has from an date that 8 C. 148. Our court provision 60 Miss. Pinson, Meacham v. such a is valid. Eyrich Capital Miss. Brahan 60; State 217; Bank, Duggan 266; Nat’l 72 Miss. Bank, v. Clarksville First Campbell, Brittain, Bank Duncan v. 441; 75 Miss. Brashears, Miss. Burt v. appellants paid court into case if the had bar, In the at due, interest hill and fees, with their they the amount might escaped it clear- have appellants testimony appears ly one of attorney, to an over the notes had turned Brewer never original attempted hill so. At the time nor to do contraiy on the this, to do but see fit filed, Jones did not JoNES uao.v. et at. Beewee Opinion [146 of the Court. money be withheld his act own rendered it necessary place his notes the hands of attorney.
Notes
action. The included last-named additional money advanced to Jones Brewer. fact, as a that the two last notes held, Chancellor interest, for usurious the interest dollars, these which amounted to several hundred notes, usury charged was no but held there forfeited; in the interest on the ten notes executed to cover the
old was included indebtedness not taint with did the indebtedness of the first no transaction. There was such connection between the two transactions to warrant the view that the in- usurious, terest the first transaction was because us- charged subsequent urious interest was the two notes. Second, Jones contends no fees should have been for the collection of the indebtedness allowed
Brewer. The case of Burt v. question in favor of 79 So. settles holding the Chancellor. the correctness Jones, that the On the contention of Chancellor third usury by charged allowing Brewer in not erred applied transaction to be the last charged it was at the time of the notes point taken, well that collected, we think the regard the amount in that so that decree must be reversed may properly usury a deduction credited against balance recovered amount as allowed, may proper against by calculation Brewer, Jones as show. cross-appeal, point presented theOn the amount have allowed court should not is, the amount due an offset limitation the statute of barred because it
paid; have been opinion, and this court, its former
one hun- him, included for one thousand sev- dred dollars one one thousand four hundred enty-four usury by payment him thereon dollars, the original debt a of the a JoNes wc. v. Brewer et at. Dissenting Opinion. [146 Miss. consequent- four thousand five hundred and that dollars, ly, paid any original all interest him on of the series (2) be forfeited; notes should if mistaken in he this, have been interest on amount allowed usury paid by him notes. on the two new holding I concur in the the court below on first of these am that Joiles but I of the contentions, usury paid by should have been allowed interest on Usury him on the two of the notes. excess paid paid, becomes, it is debt when pérson paying recipient debt due thereof to six bears at it; and, course, under interest statute, per cent. right interest on We are confronted with Jones’ debt at that borne this set-off a rate excess of i't off. which he seeks set my holding I am to concur with associates unable
the attorney litigation, of an at the institution of this rights parties under familiar the to be of are rules as of determined suit. the date institution attorney’s having right Not to collect fees when injunction acquire they suit not therefore filed, could they right, especially in default, such were as found when rendering of ac- in a true statement not court, counting however, the think, the note. I to the maker of supra, is unsound, Brashears, decision Burt v. ought not to he because fees overruled, accept the full creditor refuses to allowed where the litigate get his amount debtor due has rights. judges that said Three of are of wrongly ought to he because decided. case overruled utterly the con- not It to me unfair and within seems note for the holder tract embraced in the note accept amount due. real J. Anderson, Judge to the extent dissent Ethbidge’s I concur agree Brashears, I him that Burt with ought overruled. So. to be Suggestion On of Error. Cook, challeng- suggestion appellant error filed has respect ing case the decision the correctness majority only, and a to the allowance suggestion error opinion that said is of court be overruled. "should