100 Ga. 540 | Ga. | 1897
1. The questions to be decided in this case arise on exceptions to- the judgment of the court below in sustaining a -demurrer to the declaration of the plaintiff, and involve the .application of certain principles in the law of usury. Our ■Civil Code, §2892, declares: “All titles to property made .as part of an usurious contract, or to evade the laws against usury, are void.” The record discloses that the title in question was made to- secure a debt infected with usury; and the plaintiff, invoking this provision of our law, insists on a literal application of its precepts, while ’the defendant contends that such title is not ipso facto void. This is the question we have- to decide.
Inasmuch as there is no qualification in the statute, we .should consider first what is its effect; and we quote the language of an eminent writer, that “when the plain and unequivocal language, of the- law is rigidly followed, there ■are, to be sure, a few cases of hardship; but let it be once understood that statutes are not to be limited in their opera
Now, who can cause such or any other adjudication of that ■conveyance to he made? The answer is plain under the law: not a stranger -to it, but only one who- has an interest adverse to it. So that, deciding as we do that titles to property infected with usury are void, the practical effect of such de■eision is nugatory, until we further consider and determine who may have them so declared. The doctrine is well settled that the defense of usury can only be taken by the party to ithe usurious agreement, or persons representing
2. It would seem conclusively to' follow from the above reasoning, that a stranger in law or in interest would not be heard to attack a title as void because infected with an usurious consideration; indeed we can conceive of circumstances where even personal representatives, or privies in blood or estate, could not do so. This court held in the case of Zellner v. Mobley, 84 Ga. 746, quoting from Mr. Tyler, that, referring to' the borrower, “If for any reason — his desire to avoid litigation, his pride of character, or his conscientious sense of justice, he may be induced to waive bis-legal rights and to satisfy a demand, he is at liberty to do so, although it may be obnoxious to the defense of usury.” If' a borrower may exercise his personal privilege and pay off a debt infected with usury, or refuse to take advantage of this plea, preferring for such reasons as may actuate him to recognize and settle such usurious contract, no one can deny him the right, and when he chooses to do so and has done so, then neither his personal representatives nor privies can reopen the question or revise his act. In the case now under consideration, it is admitted that Perry, the intestate, made to Lewis an absolute deed to real estate to secure the payment of a debt infected with usury. Under our law, this title was void, and under any view of the law, Perry would have the right to have it so declared; and if nothing more appeared, the personal representative of Perry and his-privies in blood or estate would succeed to the same right. Rut more does appear. At the time of the delivery of this deed, Perry, the intestate, made a contract with Lewis by •wbicb the latter executed a bond conditioned to convey to
Under the view which we take of the case, the administrator of Perry is not entitled to any of the relief prayed for by him; nor in our opinion can 'he bring up the question of usury in the original transaction between Perry and Lewis. When Perry made the deed to Lewis, he procured the latter to make a bond for titles to a third person, and the assignee of this third person complied with the terms of the bond, paid the money and received conveyance. Perry had a right to redeem. He chose, however, for sufficient reasons, to part with his right, and when he did so, he had no further right or interest in the land. Polhill v. Brown, 84 Ga. 338; 9 Paige’s R. 137. If after -these transactions Perry
Juclgment affirmed.