251 F. 191 | 8th Cir. | 1918
From a decree in foreclosure of deed of trust cross-appeals are here. • The dispute is entirely concerned with the amount allowed by the decree. The appellants (defendants) claim that it should be materially reduced because of the inclusion of usurious items, and also because a credit should have been allowed for a sum realized in another foreclosure upon other land. The plaintiffs claim the decree should be augmented by the amount of a commission ($1,100) which was deducted by the court as usurious. The court excluded several items as usurious and gave judgment for the balance, with interest. Our determination is an affirmance of the action of the trial court, with a slight difference in the amount of the decree, due doubtless to error in computation of interest.
The note secured by the deed of trust was dated April 30, 1914, and was for $38,500, bearing 6 per cent, annual interest. The foreclosure decree was of October 23, 1916, and covered this note and subsequent tax payments, with interest upon both. This note was composed of the following items: An earlier 90-day note, dated March 13, 1912, for $30,000, with interest. Of this interest $3,338.85 was unchanged in form; the remaining $450 had been included in a note for $1,000, dated June 12, 1912, with $550, which was a commission paid for an extension of the $30,000 loan. Therefore the first two items were $33,338.85 and $1,113 ($113 being interest on the $1,000 note). The next item was for $2,673.30, which represented principal ($2,500) and interest of a note given December 4, 1912, to procure a further extension. The other items, except two, were for undisputed expenditures made in connection with the property, such as taxes, abstracts, etc., which total $811.76. Of the two other items, one was the sum of $400 advanced to defendants to pay a broker for securing a loan to plaintiff, with the $38,500 note as collateral. The plaintiff re
These two items came from rather involved dealings as follows: Al the time of and prior to the making of the note for $30,000, William H. Journejr was the owner of 207 acres of farm land near Grafton, 111., and at the same time his mother owned an adjoining 160 acres. The title to the farm owned by Journey, as well as to his home at Grafton, was in Meysenburg’s name, but was really held by him as security for a debt of $24,000 due from Journey. Shortly before the execution of the note, Journey and other parties, desiring to acquire the Arkansas land covered by the deed of trust foreclosed in this case, had arranged a trade therefor under the following conditions: In return for the Arkansas land was to he given the farms of Journey and his mother, together comprising 367 acres, and $20,000 in cash, to be secured through a loan upon the farm property, less 20 acres; these 20 acres, containing a quarry, Journey was to repurchase for $2,000 cash and a note for $4,000, secured by mortgage on this quarry property. To make this trade it was, of course, necessary to secure the transfer from. Meysenburg of the title to the J ourney farm o f 207 acres, which necessarily involved the release of that property as security for the above $24,000 debt. Journey’s home place, the only other security for this debt, appears in the evidence as of little value, so that this step on Meysenburg’s part involved the abandonment of practically all of his security for the Journey debt. Meysenburg agreed to reconvey to Journey this farm, taking thereon a deed of trust for $20,000, and to furnish the needed $22,000 cash, which was to he secured by a deed of trust upon the Arkansas property. As, however, this reduced the amount of Meysenburg’s security for the $24,000 debt, it was agreed that the Arkansas property should stand as additional security up to $6,900 of the $24,000 indebtedness, so that if the Journey farm, on foreclosure, should not take care of this indebtedness, any balance should be made from the Arkansas property. As compensation-or commission for bis services in the above transactions, it was agreed that Meysenburg should receive $1,100, to be secured by the Arkansas property, so that the $30,000 note represented the sum of $22,000 cash and the above items of $6,900 and $1,100.
Tiie contract, taken alone, at its face value, would suggest an Illinois contract. It is a note upon a printed form, dated “Grafton, 111.,” for a sum of money made payable “at the Grafton Bank.” The undis
The final contention is that the amount due should be reduced by the more than $16,000 received from foreclosure of the Illinois land under the deed of trust for $20,000. A memorandum agreement between the parties, dated August 19, 1916, and the history of the transactions as given above, show veiy clearly that this reduction should not be made.
The items and.amounts which should be considered in reaching the principal due on the note for $38,500 are as follows: The $30,000 note, less the commission of $1,100, or $28,900, with interest at 6 per cent, to April 30, 1914 (date of the note for $38,500), less $450, the portion of the interest which was included in the note for $1,000, dated June 12, 1912; $450, just referred to, with interest thereon from June 12, 1932., to April 30, 1914; the undisputed expenditures
The judgment will be reversed and remanded, with instructions to enter a decree in conformity herewith; the costs to be upon the appellees.
12 Sup. Ct. 150, 35 L. Ed. 951.