55 S.C. 132 | S.C. | 1899
Lead Opinion
The opinion of the Court was delivered by
On the 21st day of November, 1890, the defendant executed and delivered to C. S. McCall the following promissory note or agreement, to wit: “$6,827.60. Bennettsville, S. C, 21st Nov., 1890. On the first day of November, 1895, for value received, I promise to' pay to the order of C. S. McCall, the principal sum of $6,827.60, with interest to be calculated from this date at the rate of eight per cent, per annum, both before and after maturity, discounted and payable annually on the first day of November in every year, including the present; unpaid interest to’ draw interest at the same rate as principal, both principal and interest payable at the Bank of Marlboro. Payments be made in United States gold coin of the present standard of weight and fineness, or its equivalent at the option of the payee. It is further agreed, that if default be made in the payment of any of the installments of interest, aforesaid, at the time and place aforesaid, when and where the same becomes due and payable, then and in that event, the said principal sum of $6,827.60 shall at the election of the legal holder thereof, at once become and be due and payable, anything hereafter contained .to the contrary notwithstanding, such election to be made without notice. This note is secured by mortgage of even date herewith, duly recorded. Jonathan Woodley.” A mortgage of lands was on the same day executed by Woodley to McCall to secure the aforesaid obligation, which mortgage is in full force until to-day. The note arid mortgage were both made payable to Mrs. Katie M. Newton, without recourse, by C. S. McCall. The following partial payments are indorsed on the note: “Received on this note $1,220, December 18, 1890. Received on this note as of December 18, 1890, $2,255. $270. Received from Jonathan Woodley $270, * * * November 23, 1S91. $275. Received $275 on this note * * * November 28, 1892. $273. Received on this note $273, December, 30, 1893. $550. Received $550 on this note, November 23, 1895. $1,930. Received $1,930, * * * December 28, 1896.”
Action was commenced by plaintiff against defendant on the 24th day of March, 1897, to foreclose the mortgage and procure decree establishing true indebtedness of defendant to plaintiff, which she alleged at that date to be $2,877, with interest thereon at the rate of eig'ht per cent, per annum from the 18th day of December, 1896, and in the complaint the foregoing facts were substantially set forth. The answer of the defendant really is pointed against the contract as tainted with usury in these words : “'1. That by the terms of the said note, the plaintiff, as assignee, has received and accepted usurious interest by charging eight per cent, interest on the principal sum, and also discount and interest on the interest due in advance, and that by the terms of said note or agreement, the assignee of the plaintiff has made a contract with the defendant to charge him usurious interest, and in pursuance of the same has collected and accepted same, &c.” Seeks to- collect double the amount of $1,500, which he alleges he has paid as usurious interest. Also
If this conclusion be correct, does it not dispose of all the questions raised by the appeal ? If it was not usurious, the tender would not hold, nor could there be any counter-claim for excess of interest. My opinion is that the judgment of this Court should be: It is the judgment of this Court, that the judgment of the Circuit Court be affirmed and that the action be remanded to the Circuit Court. But the members of the Court are equally divided. Therefore, under the Constitution, the Circuit Court judgment stands affirmed.
Concurrence Opinion
Dissenting Opinion
It seems to me, therefore, that in any view which may be taken, this contract, which is certainly novel in its form, as I have not been able to find any case, and none has been cited, in which such a contract has come before the Court for construction, must be regarded as usurious; and that to hold otherwise would practically emasculate the usury law, and enable lenders to receive greater rate of interest than that which is allowed by law.
Rehearing
Upon petition for rehearing, the following
order was filed:
As to the third consideration, it 'seems to us that counsel fail to do themselves justice in characterizing their argument as “perfunctory;” but, in addition to this, we are able to say that the case was thoroughly and carefully considered, and the point, as .to the distinction between contracts executed and executory, was not only not overlooked but was expressly referred to in one of the opinions. Inasmuch as it is