87 Ga. 1 | Ga. | 1891
McLaughlin gave his note to the New England Mortgage Security Company, promising-therein to pay interest from its date at the rate of 8 per cent, per annum, and secured the same by a mortgage on land in .Georgia, containing the stipulation quoted in the above head-note. The note was made payable in the city of New York. Plaintifis foreclosed said mortgage in the superior court of Marion county. The defence was, that the note being made payable in New York, it must be enforced according to the laws of that State; and as the maximum
The only question presented by the record for our determination is, whether or not this note was affected with usury for the reason stated. The question, whether ‘or not a note made payable in a different State than that in which it is executed and bearing a given rate of interest legal in the State where made, is usurious when the contract rate of interest expressed therein is higher than the legal rate prescribed in the State where payable, has been often and fully discussed by many courts and text-writers. But for the fact that so much contra-, riety of opinion has been expressed upon the question, the writer would deem it a plain one, especially where the contract itself, as in the present case, provides that it shall he in all respects construed by the laws of the State in which it is made. Deferring, however, to the large number of respectable authorities entertaining a different view, some discussion of the question will be now attempted. In the first place, it would seem that the parties themselves are the best judges of what they wish to accomplish by their contract, and if such contract contains no provision per se illegal, vicious or contrary to public policy, it ought to be enforced. It has often been held that parties will not be allowed to make contracts to be performed in another jurisdiction for the purpose of evading the usury laws of their own domicile, but this doctrine can have no application where the maker of a note contracts consistently with the laws of
All the authorities above cited refer to notes or other contracts which have not in them a distinct stipulation that the contract shall be construed according to the laws of the place where made. A recent Texas case, that of Dugan v. Lewis, 14 S. W. Rep. 1024, decides the precise question presented by the case at bar. In that case a note bearing a rate of interest which would have been usurious in New York where it was made