156 N.W. 780 | N.D. | 1916
This is a suit in equity to foreclose a chattel mortgage securing two promissory notes of $2,000 each, bearing interest at 12 per cent per annum, nonusurious on their face. The appeal is taken upon the findings of fact, which accordingly are accepted as true. The only questions presented are those of law. The consideration for the notes sued upon consisted of two notes bearing 12 per cent interest, one for $356 and the other for $966, together with cash advanced sufficient to make the total of $4,000 at the time the notes in suit were taken. The $356 note was admittedly usurious, being a renewal of an earlier usurious note. The usury in the original note and the $356 note amounted to $45 over and above the 12 per cent per annum exacted. The $966 note was an independent transaction and free from usury. And except for the usury contained in the $356 note and interest thereon entering into the two notes for $2,000 each, said notes are nonusurious. The questions of law presented concern the effect of the usurious note upon said notes in suit. Plaintiff asserts that the $356 note should be treated as one transaction, and, from the total amount due on the $4,000 and interest at 12 per cent, there should be deducted the $45 bonus therein and all interest collected on the original $330 note and accrued on the $356 note, and a pro rata deduction of 12 per cent interest on the amount of the $356 included in the $4,000 transaction, altogether amounting to a deduction of $218.35 from the face and interest of the two $2,000 notes, and’ that foreclosure be had for the balance of the principal and interest
Our present usury statutes are largely but re-enactments of the national banking act, defining usury and penalizing its taking by national banks, U. S. Rev. Stat. §§ 5197, 5198, Comp. Stat. 1913, §§ 9758, 9759. This was for uniformity that there should be substantially the same usury laws for state and national banks and private individuals as well. It was thus necessary to adopt substantially the Federal banking act as our usury statute, because, so far as the operation of national banks is concerned, “the definition of usury and the penalties affixed thereto must be determined by the national banking-act, and not by the law of the state. Farmers’ & M. Nat. Bank v. Dearing, 91 U. S. 29, 23 L. ed. 196. In that case it was held that a law of New York forfeiting the entire debt for usury was superseded by the national banking law, and that such law was only to be regarded in determining the penalty for usury.” Hazeltine v. Central Nat. Bank, 183 U. S. 132, 133, 46 L. ed. 118, 119, 22 Sup. Ct. Rep. 50. And the same is true in equity suits in foreclosure. Schuyler Nat. Bank v. Gadsden, 191 U. S. 451, 48 L. ed. 258, 24 Sup. Ct. Rep. 129. The Federal national banking act imposing this penalty was enacted in 1864, repealing the former penalty imposed by congressional act in 1863 (12 Stat. at L. 665, chap. 58), providing for a forfeiture of the entire principal and interest, evidently in harmony with the then existing usury statutes of New York and some other states. The act of 1863 was a penalty, and the present statute, adopted a year later, was no less a penalty. 11 Enc. U. S. Sup. Ct. Rep. 852, and cases cited. And our statute likewise penalizes for the taking of usury, but, in entire harmony with the Federal act, the penalty applies only to the interest, and not to the principal evidenced by the note. “The penalties laid down by the statute, therefore, are the only ones that can be considered,
The decision would be the same, however, if the source of our statute was ignored and the Federal holding disregarded if precedent be followed. In scanning decisions, however, reference should be had and kept in mind as to whether the statute under which the decision is given declares, as does ours, a penalty or merely a remission of the usurious over the legal interest, of which New Jersey under its early statutes was an example. See the construction thereof in Bedle v. Wardell, 25 N. J. Eq: 349, and Mahn v. Hussey, 28 N. J. Eq. 546. But for this radical difference in statutes, Mahn v. Hussey, identical on facts, would be authority contrary to our holding. And the early statutes of Ohio were like New Jersey. Baggs v. Loudenback, 12 Ohio, 153, in the opinion of which it is said: “In most countries it [usury] works a forfeiture of the whole debt tainted with usury. In our state
In McGuire v. Campbell, quoting from the opinion, a loan was made of “$1,000, and $500 of this amount was paid the next day, and the contract was verbally made to pay 12 per cent interest on the loan, and the same usurious contract existed during all the time up to and at the time the judgment was confessed. Between the time of the payment of said $500 and March 1, 1879, the usurious interest amounted to $185, of which sum $105 was paid, and on March 5, 1879, the borrowers gave a renewal note of $580, which included the balance of the usurious interest unpaid. The loan was continued without other renewal by note until the note sued on was executed and that note was made up of the note for $580 and usurious interest thereon at 12 per cent, and another debt of $105. On March 1, 1879, deducting $500 principal and $105 usurious interest paid from the $1,000 loan, which under the law were proper deductions, $395 was the amount then due, and adding to it the principal of $105 debt included in the sum of the note sued on, and deducting all the usurious interest, there would remain due plaintiff $500, as found by the court. . . . The effect of contracting for or reserving usurious interest, whether by verbal or written contract, is the forfeiture of all interest. This statutory provision applies in this case.”
It is contended that the note is tainted only to the extent of the usurious indebtedness incorporated in it. Beference is made to 29 Am. & Eng. Enc. Law, 518, where, in a general discussion of usury, it is stated: “If a new obligation is given in which are incorporated the original usurious indebtedness and also a valid nonusurious indebtedness, the new obligation is not tainted with the original usury so far as the nonusurious indebtedness is concerned, but it is usurious to the extent of the original usury carried into it,” — citing Porter v. Jefferies,
The only division of authorities seems to be upon the question of whether the legal rate — -7 per cent in the absence of contract — should be allowed plaintiff upon the amount of money actually loaned by him to defendant in all the transactions culminating in the notes in suit; or whether, on the contrary, he should be held to forfeit the entire interest thereon. See the main and dissenting opinions in Owens v. Wright, 161 N. C. 127, 76 S. E. 735, Ann. Cas. 1914D, 1021, and note at 1028. The allowance of any interest seems to be a disregard of the usury statute requiring a forfeiture of all interest. Holdings as to what is equitable turn largely upon whether the usury statute declares a forfeiture of all interest where usury is present, or whether the
The trial court, however, did not allow interest upon the basis of 7 per cent, but upon 12 per cent. Little support can be found in the authorities for that basis.
The notes in suit are usurious. Plaintiff will recover the amount he has advanced in cash in all of the transactions, but without any interest thereon whatever, except that he should be allowed interest upon the $966 note at 12 per cent from its date, April 1, 1910, to September 28, 1910, the date of the taking of the two $2,000 notes j that no other interest should be allowed to plaintiff ■ and that upon said indebtedness there should be credited the payments made, aggregating $2,435.97, leaving approximately $1,500 still due plaintiff from defendant, and for which judgment of foreclosure should be entered, Jess appellant’s costs on this appeal. The judgment appealed from is directed to be modified accordingly.
I am unable to concur in the majority opinion and with due deference to the views as there expressed, I think my associates have failed to discriminate in reading the authorities.
In brief the facts are as follows: In April, 1910, defendant executed and delivered to plaintiff two promissory notes, one for $330 in which there was included a bonus of $30, and the other for $966.43 containing
The sole question, therefore, is whether the latter notes are so tainted with the usury aforesaid as to justify and require a court of equity to enforce a forfeiture of the entire interest accrued thereon. The learned trial court thought not, and he merely deducted from such notes the total bonus, aggregating $45, together with a sum equal to all interest on the two small notes from their dates to the date of entry of judgment, amounting in all to $218.35. In so doing, I am satisfied that such court very properly and correctly meted out exact justice to the defendant. His decision is not only sound on principle, but it is supported by all the authorities which are in any way in point in so far as I am able to «discover. See: 29 Am. & Eng. Enc. Law, 2d ed. 518; 39 Cyc. 990, 996; Mahn v. Hussey, 28 N. J. Eq. 546; Ammondson v. Eyan, 111 Ill. 506; Porter v. Jefferies, 40 S. C. 92, 18 S. E. 229; McCraney v. Alden, 46 Barb. 272; Bank of Russellville v. Coke, 20 Ky. L. Rep. 291, 45 S. W. 867; Hinkson v. Wigglesworth, 20 Ky. L. Rep. 1161, 48 S. W. 1079; German Ins. Bank v. Fabel, 24 Ky. L. Rep. 1721, 72 S. W. 329; Farmers’ & M. Bank v. Hoagland, 7 Fed. 159; Wilson v. Fleming, 23 Ind. 119; Smith v. Heath, 4 Daly, 123; Farmers’ & M. Bank v. Joslyn, 37 N. Y. 353; Burnhisel v. Firman, 22 Wall. 170, 22 L. ed. 766; Graves v. Safford, 41 Ill. App. 659; Parish v. Stone, 14 Pick. 198, see pages 208, 209 and 211, 25 Am. Dec. 378; Guild v. Belcher, 119 Hass. 257; Langdon v. Gray, 52 How. Pr. 387; McFerrin v. White, 6 Coldw. 499.
The text in 29 Am. & Eng. Enc. Law, 2d ed. 518, is as follows: “If .a new obligation is given in which are incorporated the original usurious indebtedness, and also a valid nonusurious indebtedness, the new obligation is not tainted with the original usury so far as the nonusurious indebtedness is concerned.”
The author of the article on usury in 39 Cyc. at page 990 states: “But when the obligation is severable, and a part thereof can be as
Mahn v. Hussey, 28 N. J. Eq. 546, is on all fours with the case at bar. I quote from the opinion of the New Jersey court as follows: “The pleadings disclose the following state of facts: The complainant, on the 2d of March, 1868, lent to the defendant Hussey $4,500, taking his bond and mortgage executed by him and his wife for $5,000, with interest. On the 29th of December, 1868, the complainant lent to Hussey $1,000 more, on like bond and mortgage; and in March, 1873, he lent to him $1,500, the payment of which, with the amount of the former loans, was secured by a bond and mortgage for $7,500 and interest, on the premises described 'in the former mortgages, which were then canceled. The principal on this last mortgage, which is the mortgage in suit, was made payable on the 1st of July, 1878, and the interest semiannually, with provision that if default should be made in the payment of the interest for thirty days, the principal should, at the option of the mortgagee, immediately become due. On the first loan of $4,500, it was agreed that the complainant should receive a premium of $500, which was included in that mortgage. The answering defendants, by their answer, set up the defense of usury, and they insist that the mortgage in suit is so affected thereby that not only is the whole of the interest forfeited, but the bill must be dismissed, because no interest has even been recoverable on the morta’aee, in con
Ammondson v. Ryan, 111 Ill. 506, is also squarely in point. In that case there was an original loan of $2,000 in which there was a bonus of $50. To this latter an additional loan was made of $700, containing no usury, and these two loans with unpaid interest on the first amounted to a total indebtedness of $3,000 for which a new note secured by a trust deed was given. It was held by the supreme court of Illinois that in so far as the original $2,000 note entered into the $3,000 note and deed of trust, the latter could be enforced for only $1,950, but as to the $700 portion of the consideration the new note could be enforced with the stipulated rate of interest.
Porter v. Jefferies, 40 S. C. 92, 18 S. E. 229, is also directly in point, as well as many of the other cases above cited, but some of which I do not claim to be in point except on principle.
The numerous authorities cited in the majority opinion were no doubt correctly decided under the facts involved, but as I read them they are each readily distinguishable from the case at bar. Much reliance is placed upon the case of Citizens’ Nat. Bank v. Donnell, 172 Mo. 384, 72 S. W. 925 (affirmed in 195 U. S. 369, 49 L. ed. 238, 25 Sup. Ct. Rep. 49), it being stated that such case is "exactly parallel and decisive on all points involvedI am unable to thus construe the opinion in that case. Contrary to the facts in the case at bar, the renewal note in that case did not cover two or more divisible obligations or indebtednesses, some of which were not tainted with usury, but the language of the opinion shows that the consideration of the renewal note embraced nothing but usurious transactions. The language is very significant. It is
It is, of course, a well-settled general rule tbat a note given in renewal only of a usurious note is usurious; but as I understand such rule, it is not broad enough to uphold appellant’s contention under tbe facts in tbe case at bar. Here tbe usurious part of tbe indebtedness is very small and easily separable from tbe nonusurious portion, and as a consequence the two large notes cannot be properly said to be tainted except to tbe extent of tbe usurious part of tbe indebtedness.
Most, if not all, of tbe authorities cited by appellant’s counsel, as well as in tbe majority opinion, are cases involving renewal notes covering only indebtedness which was previously tainted witb usury, and, of course, are not in point. I think tbe judgment should be affirmed.