2 Indian Terr. 651 | Ct. App. Ind. Terr. | 1899
The appellant has filed eight specifications of error, as follows; ‘‘The court below erred: (1) In its answer to the following request for a special finding: ‘What was the defendant’s relation to said note and mortgage, and for whom and in what capacity did he act?’ — said special finding being as follows: ‘When the note was made the defendant acted for himself and his wife, or in the name of his wife. Afterwards, prior to maturity of the note, defendant and his wife endorsed it in blank, and defendant testified that he sold it to Mrs. M. E Dupree. He acted for himself, to protect himself as surety on the note, and as agent of Mrs. Dupree in the collection of the note and in the foreclosing of the mortgage.’ (2) In its answer to the following request for a special finding: ‘What amount of money was realized by the plaintiff on said note and mortgage, and to whom was it paid?’ — the answer to the same being as follows: ‘No money was realized, but the plaintiff, by giv-ng the note, obtained the extinguishing of debt, evidenced D,y two otherpromissory notes, one note for $46.75,and one for 1)91.75, and accrued interest, and $1.75 charges of defendant
The case having been tried by the court without a jury, the findings of fact by the court on that point are contained in the third and fourth specifications of error, supra. It appears that, according to the recollection of the court, one'of the notes had three dollars of usury in it. The appellant insists in argument that, as the court made his findings some weeks subsequent to the hearing, his recollection of the evidence was dim, and that, as a fact, the evidence did not disclose any usury in either of the two original notes. It, however, appears from the findings of the court, as set out in the fifth, sixth, and seventh specifications of error, supra, that the court was of the opinion that charging usury for the extension of a note vitiated the same; but it does not appear from the evidence that the. holder of the note was a party to, or knew of any usury, or that she ever authorized appellant, who according to the findings of the court, was agent for the holder, to charge usury. Call vs Palmer, 116 U. S. 98, 6 Sup. Ct. 301. In fact, the note was sold to the holder by Smith and wife, after its execution, before maturity, and for value. Taking the recollection of the court as correct, only one of the orig
Only one of the original notes contained usury, according to the recollection of the court. Hence the note secured, by the moi’tgage could only be void pro tanto, and the mortgage securing the part of the note that is not invalidated by usury was valid and binding, and the appellant, being in possession, is rightfully in possession to secure all of the debt not invalidated by usury, and the appellee cannot maintain this action. Reversed and remanded.