Thompson v. Field

45 Neb. 146 | Neb. | 1895

Ryan, C.

This action was brought for the foreclosure of a mortgage securing payment of a note for $6,000, of date August 15,1889, made by appellants to Charles O. Norton, by whom said note and mortgage were assigned to plaintiff-Two years before the dale above given, Mr. Norton had loaned to a Mr. Wood the sum of $3,000, at ten per cent interest per annum, for five years, secured by a mortgage upon the same property as described in the mortgage whereof a foreclosure was had herein. Subsequently, Mr. Wood sold the mortgaged property to Mr. Field, who,, about August 15, 1889, had so improved it that it was deemed ample security for a larger loan. Mr. Field, being unable to borrow elsewhere the desired sum upon the property, applied to Mr. !Norton, who at first refused, but afterwards consented to make a loan of $6,000, taking the already mortgaged property as security. He would not, however, forego the advantage of a first-class loan having three years to run at ten per cent interest per annum without compensation, and between himself and Mr. Field it was arranged that in addition to payment of $3,000 there should be paid Norton $300 in consideration of his satisfaction of the existing mortgage. This was the explanation of the payment of $300 made by both Mr. and Mrs.. Norton, each of whom testified as from actual knowledge of the transaction. Mr, Field on the other hand testified that the sum of $300 above referred to was exacted from him as advance interest on the $6,000 borrowed, and if this was true, his defense of usury was without doubt established. The district court, however, found as a fact that there was no usury in the transaction, and it can hardly be contended that there was no evidence upon which this finding could be based. Under such circumstances the judgment of the district court cannot be disturbed. There was a contention that the transfer from Mr. Norton to plaintiff was such as would protect her, even though there existed a defense against the note in the hands of the original payee. "We have not found it necessary to the determination of this case to consider this question, for, as has already been seen, there was no such defense established by the. proofs. The judgment of the district court is

Affirmed..