181 Ga. 288 | Ga. | 1935
(After stating the foregoing facts.) In the briefs filed for the plaintiffs in error it is conceded that the plaintiff’s petition was sufficient to show that each loan was infected with usury, and that after forfeiting the interest and other unlawful charges the plaintiff has fully paid the amounts of principal actually received by him, as alleged in the first count, and that the allegations made in each count are sufficient to state a cause of action, unless the plaintiff’s claim for credits is barred by limitation. The petition shows upon its face that all payments were made more than one year before the suit was filed, and the sole
It is well enough in this connection to mention the case of Finney v. Brumby, 64 Ga. 510, relied on by counsel for the plaintiffs in error. It appears from the decision in that case that the defendant’s husband incurred a debt on which he paid a sum as usury. He was later put into bankruptcy, and the defendant wife was urging a claim for a homestead. The plaintiff creditor and the defendant adjusted this controversy by agreeing that a tract of land belonging to the bankrupt should be sold by the assignee in bankruptcy, free from all liens, and that the plaintiff should buy in the property and then sell it to the defendant at the price which he had to pay for it at such sale. The plaintiff became the purchaser, as agreed, and thereafter executed his bond for title to convey the property to the defendant upon the payment of the purchase-money as thus fixed. On default by her, the plaintiff brought a suit'to recover the land, and as a defense she pleaded the payment of usury by her husband as stated above, claiming the same as a credit upon the amount which she had promised to pay the plaintiff as purchase-money. It was held that her plea of usury was barred by the statute of limitations. This was a plain effort to recover usury after a complete extinguishment of the original debt and after the bar of the statute had fully attached. The case is clearly different from the case at bar, being distinguishable upon the same ground as that stated in Cheapstead v. Frank, 71 Ga. 549, as follows: “The statute of limitations relied upon to defeat this defence is alone applicable to suits brought to recover usury which has been paid, or to a set-off claiming such a demand; and the case relied upon . . 64 Ga. 510, as opposed to this view, sustains it, as will be evident when reference is had to the decision in 61 Ga. 38 [Everett v. Planters Bank], cited by the court as governing that case.”
In 1875 the legislature passed an act fixing the rate of 12 per cent, per annum as the maximum rate of interest, and providing that for a violation of its terms the lender should forfeit the interest and the excess of interest so charged or taken. As will be noted, this provision as to forfeiture is substantially the same as the present law. Other provisions of the act were as follows: (3)
For other decisions bearing upon the question, see Winkler v. Scudder, 1 Ga. 108, 135; Bailey v. Lumpkin, 1 Ga. 392 (6); McGee v. Long, 83 Ga. 156 (9 S. E. 1107); Johnson v. Southern Mutual Building & Loan Asso., 97 Ga. 622 (25 S. E. 358); McIntosh v. Thomasville Real Estate &c. Co., 141 Ga. 105 (80 S. E. 629); Camp Lumber Co. v. Citizens Bank, 142 Ga. 84 (82 S. E. 492); King v. Moore, 147 Ga. 43 (92 S. E. 757); Taliaferro v. Bank of Arlington, 172 Ga. 872 (159 S. E. 260); McGraw v. Planters Bank of Pavo, 178 Ga. 580 (173 S. E. 643); Quinn v. First National Bank, 8 Ga. App. 235 (68 S. E. 1010); Fowler v. Trust Co., 141 U. S. 384 (12 Sup. Ct. 1, 35 L. ed. 786). Counsel for plaintiffs in error also rely upon the decision in Gramling v. Pool, 111 Ga. 93 (36 S. E. 430); but that suit, as in Finney v. Brumby, supra, was an effort to recover a sum paid as usury after a final liquidation of the debt; and the claim was properly held barred because not asserted in twelve months. That case does not resemble the case now under consideration. The plaintiffs in error have further cited two decisions by the Court of Appeals, Laing v. Hinesville Bank, 31 Ga. App. 416 (120 S. E. 799), and Bennett v. Bennett, 50 Ga. App. 34 (177 S. E. 90), to which may be added Lankford v. Peterson, 21 Ga. App. 1 (3), 15 (93 S. E. 499). These decisions hold that where usurious interest has been paid and applied as such, the statute of limitation is applicable to a plea filed after more than one year, in a suit on the obligation. The case last mentioned appears to have been the main support for the other two, and it in turn was based chiefly on the decision by this court in Atlanta Savings Bank v. Spencer, 107 Ga. 629 (6) (33 S. E. 878), in which it was held: “When not otherwise directed by the debtor, payments made on a debt infected
Upon consideration of all the provisions of the act of 1875, and of the decisions based upon that statute, it is obvious that the term sei-off, as employed therein (Code of 1933, § 57-113), was not used in its technical sense, but was intended in the sense of payment, as in a plea of payment in an action for the principal
Before concluding this opinion some notice should be taken of two decisions by this court which have not been cited by the attorneys on either side in the present case. We refer to Lanier v. Cox, 65 Ga. 265, and Smith v. McWhorter, 173 Ga. 255 (160 S. E. 250). In the decision in the Lanier case there is some language which is plainly contrary to the views expressed above, but the report shows clearly that no payments whatever had been made by the debtor, and thus that so much of the decision as related to the bar of the statute was manifestly obiter dictum. Also, an examination of the original record of file in that case shows that no payments had been made in that case. That case has never been cited in any other decision either by this court or the Court of Appeals. If the present decision is contrary to anything held in Smith v. McWhorter, supra, prior decisions concurred in by all the Justices are binding, and must be followed in preference thereto as authority. As stated above, the sole contention of the plaintiffs in error is based upon the statute of limitations. Hence the
Judgment affirmed.