55 Ind. 341 | Ind. | 1876
Lead Opinion
John K. Evans, the deceased, made a usurious loan of money to William B. Daniels, who executed his promissory note for the amount, which was also secured by a mortgage on certain lands. Afterwards, '.Daniels sold the lands to Alfred Marquardt, received the purchase-money, and conveyed the same accordingly, with covenants of warranty and against incumbrances, Daniels agreeing to discharge the mortgage given by him to Evans. Marquardt afterwards, without the mortgage having been discharged, sold and conveyed the lands, with covenants of warranty and against incumbrances, to •Aide C. Huffman, who paid the purchase-money to Marquardt, with notice of the mortgage of Daniels to Evans. This suit was brought by Evans, against Marquardt and Huffman, to foreclose the mortgage and sell the lands. Daniels was not made a party to the record. Mrs. Huffman, i'n various paragraphs of her answer, sets up the usury in the loan made by Evans to Daniels, as so far a bar to the action. A statement of the pleadings may be dispensed with, as no question arises upon them, which, in the view we take of the case, needs to. be decided. The issues are sufficient to sustain the verdict, which is in the following words:
“ We, the jury, not being advised upon the law, find a special verdict on the issues in this case, as follows:
“1st. We find that the notes in the complaint set forth were given by the said Daniels, to the plaintiff, on the 24th day of August, 1866, upon and in pursuance of an agreement between him and the plaintiff for a loan of money, which was as follows:
’ “ The said Daniels applied to the plaintiff for a loan of money, and the said Evans agreed to loan the said Daniels the sum of eighteen hundred dollars, twelve hun
“ We further find, that the said Daniels agreed to pay, and did pay, said interest, [without] any coercion on the part of said Evans. That said payment, on the part of said Daniels, was made voluntarily and upon his own agreement.
“We further find, that it does not appear that the said Daniels authorized the defendant Huffman to make or set up the defence of usury in this case.
“We further find, that, after the execution of said mortgage in the complaint mentioned, the said Daniels sold and conveyed the premises therein described, to the defendant Marquardt, for the sum of three thousand one hundred dollars, which sum the said Marquardt paid to the said Daniels, before the commencement of this suit. That said conveyance, from the said Daniels, to the said Marquardt, contained covenants of warranty and against incumbrances; that said Daniels, at the time he sold and conveyed the said premises to the said Marquardt, agreed to pay and discharge said mortgage.
“We further find, that the said Marquardt, before the commencement of this suit, sold and conveyed said premises to the defendant Alcie C. Huffman, by deed, with covenants of warranty and against incumbrances; that said
“We further find, that said mortgage was duly recorded in Allen county, on the 27th day of August, 1866.
“We further find, [that] there was paid on-said notes, on the 31st day of August, 1867, one thousand and seventeen dollars, and on the 31st day of December, 1868, one hundred dollars. If, upon the facts as above found, 'the court is of opinion that said contract was usurious, and that the plaintiff' is not entitled to interest beyond •six per -cent, upon the thirteen hundred and sixty-eight dollar's, from the time it was loaned, then we find for the plaintiff in the sum of four hundred and seventeen dollars and seventeen cents.
“And if, upon the facts found, the court is of opinion that said contract is not usurious, then we find for the plaintiff in the sum of eight hundred and thirteen dollars and eighty cents.”
After the verdict,'several motions were made on behalf 'Of 'the appellee Alcie ‘C. Huffman, and exceptions takeii to th'e rulings thereon, but no crbss errors have been assigned; they are therefore 'not before us.
Evans then moved for a judgment i'n his favor for eight •hundred and thirteen dollars and eighty cents, as found in the alternative by the verdict; the motion was overruled, and exceptions properly taken. Judgment was rendered in favor of Evans, for four hundred and seventeen dollars and seventeen cents. His executors appeal to this court.
The main question raised in the record and discussed by the parties is, can Mrs. Huffman avail herself of the ■usury "suffered by Daniels, in defence of this action ?
In Stephens v. Muir, 8 Ind. 352, this court held, that
The judgment is reversed, with costs. Cause remanded, with instructions to sustain the motion for judgment for the sum of eight hundred and thirteen dollars and eighty cents, with interest from the 1st day of February, 1871, and costs of suit.
Pettit, J., dissents.
Rehearing
On petition eor a rehearing.
The counsel for the appellees has presented us with an elaborate petition and brief for a rehearing, upon a question which he scarcely mooted in his original .argument. We suggest that it would have been better if the counsel had brought his labor and his learning to the ease, before it had been submitted.
After combating the opinion delivered in this case, and the authorities upon which it rests, running from 8 Ind. to the present time, as being contrary to all precedent, he fails to cite a single case in conflict with the ruling. He cites several cases from other States, wherein usurious contracts have been declared void directly by statute, or
The petition is overruled.