89 Mo. 375 | Mo. | 1886
This was a suit to enjoin the sale of certain real estate under a deed of trust given to secure a promissory note made by the plaintiff, Israel Landis, and two other persons as his securities, for sixteen thousand dollars, due in two years after the date thereof with interest at the rate of ten per cent, per annum, interest payable annually. The note is payable to the defendant, Albe M. Saxton, executor of the estate of John Patee, deceased. The defendant filed answer in which he set up, the note and deed of trust and prayed for a foreclosure. Various payments were conceded to have been made on the note from time to time, and as the issues over the credit of date January 20, 1874, were ruled for the appellant, they need not be further eon'sidered. The contest in this court grows out of a claim of the plaintiff for a deduction of one thousand dollars from the face of the note, which was refused by the circuit court, and hence there was a decree of foreclosure from which the plaintiff appealed.
The facts as to the one thousand dollars are as fol
An agent for loaning money may take a reasonable commission from the borrower, even with the knowledge of the lender, and still the transaction will not be usurious, though the amount of interest reserved to the • lender be the full lawful interest. Smith v. Wolf, 55 Iowa, 555; Atchison v. Chase, 28 Minn. 211; Tyler on Usury, 172. Had the one thousand dollars been paid to some third person solely for negotiating the loan and without any participation therein by the.Patee estate, it
Fellows v. Longyor, 91 N. Y. 324, was a suit to foreclose q, bond and mortgage. In that case Mrs. Longyor gave the bond and mortgage to Downer, guardian, for five thousand dollars. He, as guardian, assigned the bond and mortgage to Mrs. Fellows, who prosecuted the foreclosure suit. In that case it appears Mrs. Longyor actually got the five thousand dollars. The transaction was connected with another, and for both Downer individually received a bonus. It did not appear what, if any, specific part of the bonus was to be allowed for the loan of the five thousand dollars. It is there said the funds did not, in equity, belong to Downer, but were the property of the estate of which he was the representative ; and the conclusion is reached that he could not be considered the lender of the trust funds within the meaning attached to that term by the statute relating to usury.
Here the executor, not as such, but Saxton individually, is the owner of the note, and in point of fact only fifteen thousand dollars was paid to Landis. • Whether the note should be held to be tainted with usury in the hands of the Patee estate or its assignees, other than Saxton, presents a question which we do not determine. Saxton having become the owner of the note seeks to foreclose the mortgage, and in the case of Fellows v. Longyor, supra, it was an assignee from the estate who sought to foreclose the mortgage. This difference in the parties is material and opens the way for the application of other rules of law. Saxton as executor was a trustee. He had no right to speculate with the trust property or to make gains therefrom individually beyond his allowed compensation and the law fixed the amount of his compensation. It is against public policy to allow an executor or administra
Section 1008, Revised Statutes, provides that: “Where a tender and no deposit shall be made, as provided in the preceding section, the tender shall only have the effect, in law, to prevent the running of interest or accumulation of damages from and after the time such tender was made.” While a tender was made by the plaintiff to the defendant on the tenth of June, 1881, we do not understand that any deposit of the money tendered was ever made in court, and the only effect oi the tender, if sufficient in amount, was to stop the running- of interest. The tender cannot have the effect to deprive the defendant of his security created by the deed
The judgment is reversed and the cause remanded to be proceeded with according to the principles before stated.