40 Iowa 304 | Iowa | 1875
The plaintiff in his petition alleges that in 1869, he and another borrowed of defendant, who resided in the State of Illinois, $3,000, to be repaid in eighteen months, for which they executed their promissory note for $4,200, payable within the time named without interest until maturity— but to draw thereafter ten per centum per annum, and that no other consideration was received for said note. To secure the payment of this note the makers thereof delivered to defendant warrants of the District Township of Carroll, in the county of Carroll, calling for the sum of $7,500. Upon these warrants, while so held by him, defendant recovered two judgments, one in the Cii’cnit Court of the United States for the District of Iowa, and the other in the District Court of Carroll county, upon which he has collected a large sum, more than sufficient to pay the amount legally duo upon the note given by plaintiff above referred to. It is alleged that
The defendant claims, in his answer, that a part of the warrants, amounting to the sum of $3,550, was purchased by him of plaintiff, who guaranteed their payment, and that to secure this contract of guaranty, the note referred to in the answer was executed, and the other warrants were delivered to defendant under a contract that in default of the performance of the guaranty, they should be sold by defendant at public salei Under this contract, default in the payment of the warrant first referred to having been made, and plaintiff being in default upon his contract and guaranty, the warrants received as collateral security were sold, or rather the judgments rendered thereon. The defendant denies the allegation and charge of usury, and avers that the transaction is no other or different than as just stated.
We think the evidence overwhelmingly establishes that the transaction was of- the character alleged by plaintiff, and that it was usurious. It was cunningly attempted to conceal its character by the ingenious devices resorted to by the parties, but there can be no room for doubt that .it was simply the borrowing of money from defendant at a usurious rate of interest, and the warrants of the school district were received by him as security upon the loan. We have the direct and positive evidence of the plaintiff and two witnesses to this effect. The defendant and another witness testify quite as positively in support of their side -of the case, but they fail to overcome plaintiff’s testimony.
The judgments, or rather the interest in them, claimed to have been sold by defendant under the agreement authorizing him so to do upon default of plaintiffs, were subsequently
It is shown that plaintiff has acquired all the interest of the party who united with him in the transaction, and owned a part of the warrants, in and to the judgments rendered thereon, by a proper transfer of his rights growing out of the whole transaction.
The judgments, or one of them, recovered in the name of defendant, were rendered upon certain warrants held by defendant in his own right, and upon which plaintiff at no time set up any claim, as well as upon other warrants claimed by plaintiff.
The District Court, by the decree, adjudged the contract to be usurious, but held that the money received by defendant
The plaintiff insists that the decree of the District Court is based upon an. erroneous estimate of the interest held by defendants, in his own right, in the judgments rendered upon the wan’ants. It will be remembered that a part of these warrants are not claimed by plaintiff to have been at any time his property, but are admitted to have been acquired by defend
AFFIRMED.