37 Iowa 325 | Iowa | 1873
There was no attempt to sustain this claim by evidence on the trial, nor is there any thing in the whole case tending to establish it. On the other hand the bonafides of the transaction is shown by affirmative evidence by defendant, which was properly admitted, except that it appears more than legal interest for the money loaned by Clarke to Steele was charged and included in the judgment. It is claimed by appellants that this fact of usury in the judgment taints it as fraudulent as to them. The mere fact of the judgment embracing more than legal interest does not render the confession fraudulent, and if the judgment thereon be duly rendered and is regular
It has been frequently held by this court that, before judgment, the defense of usury can be interposed only by the debtor, and cannot be set up by a stranger to the contract alleged to be usurious. See Carmichael v. Bodfish, 32 Iowa, 418, and cases cited in the opinion. The attack on this ground is made too late and by strangers having no right to do so.
In Vanfleet v. Phillips, 11 Iowa, 558, the statement was substantially the same as here, to wit: For “ money borrowed by me from the said Yanfleet, and the interest due thereon,” etc., and this was held sufficient. 'Wright, J., in delivering the opinion of the court, says: “ But it is claimed that the facts out of which the indebtedness arose should have been stated with greater particularity” — just what appellant claims in this ease. “ This position,” says Mr. Justice Weight, “ misapprehends the meaning of the statute. When it is said that the written authority must state concisely the facts out of which the indebtedness arose, it is not intended that it shall state them particularly and specifically, but briefly. To be concise is to be brief. To make a statement in a concise manner is to make it as short and brief, and yet as intelligible as possible, and not make it particular and specific.” It is also there said that “ the character of the indebtedness is so concisely stated that the mind is left in no doubt or uncertainty.’?
It is urged by appellant that this case is unlike the eases cited, in that it is not stated from whom the money was borrowed and by whom. This objection is too technical to be sanctioned by a court of equity. The statement authorizes the clerk to render j udgment against Steele for $1,020, with interest and costs, who says therein that “ the consideration of this judgment of confession is for borrowed money, and that there is now due the sañd Olarke the above stated sum, with interestThere can be no room for uncertainty on this statement, in respect to who was the borrower, and who the lender.
But conceding that the intervenors are creditors of D. and H. H. Steele, still the individual creditors of the latter are entitled to have his individual property first applied to the satisfaction of their judgments, before such property shall be applied to pay the joint creditors. Hubbard v. Curtis, 8 Iowa, 1; Story on Part., § 363, and cases cited in notes. The plaintiffs and the defendant Clarke, are, respectively, individual creditors of H. H. Steele. The property in controversy is the individual property of said Steele, and is liable to be disposed of as above indicated.
As to the validity of Clarke’s judgment, and the bona fides of the transactions between him and H. H. Steele, the judgment of the court below will be affirmed. As to the intervenors, the judgment will be reversed, and the cause remanded, with directions to the court below to render a decree requiring the defendant, Clarke, to first exhaust the security held by him upon the collaterals in his hands, before proceeding to sell the lot on which his judgment against Steele is a lien; that the plaintiffs shall, after the said judgment of Clarke is satisfied, be entitled to proceed to subject said lot lé to the payment of their claims, and that the petition of the intervenors be dismissed, or such decree will, on application, be rendered in this court.
The plaintiffs will pay the costs of the court below, and the intervenor will pay the costs of this appeal.
Reversed.