137 Ala. 119 | Ala. | 1902
The issue presented by the pleadings in this cause is, whether the note and mortgage executed by complainant to the respondent is an Alabama Or a Minnesota contract It is not contended in argument by complainant that the mortgage is usurious if it is a Min
It is undoubtedly the law as said in Pioneer Savings & Loan Co. v. Nonnemacher (127 Ala. 545), “that where a contract is made in one State to be performed in another State the parties may contract for the payment oi the highest rate of interest allowed by either State without offending against the usury laws of the other; the exception to the rule being that tkisi may not be done as a subterfuge and device and where the purpose and intention of the parties is simply to- evade the usury laws.” Or to state the propositon in the form in which it is stated in Hayes v. Southern Home B. & L. Asso. (124 Ala. 669) : “Under established rules a note or bond made payable at a particular place or which is expressly made with reference to the laws of a particular' State is governed in respect to its obligation as to interest by the law of the -place so stipulated as the place of performance. * * An exception to these rules is where such stipulations are found to be a mere device to evade the usury laws, in which case they will be held void as against, public policy.”
Confessedly these principles are only applicable to contracts made in one State to be performed in another, or where made in one State and contain a stipulation that they shall be governed by the laws of another, where payable, and have no- application when the contract is made and to be performed in the same State. In the latter ca.se the locios contractus and the locios' solutionis being the same, if the -contract is not' usurious where made and to be performed, it will be enforced by the courts of this State, notwithstanding it would have offended the laws of this -State against usury, had it been made here. — -Story on Conflict of Laws (8th ed.), p-. 397.
A careful examination of the evidence, we think, sustains the contention of the respondent, that the note and mortgage are Minnesota contracts. In addition to the note being made payable at the office of respondent's treasurer in St. Paul or to its trustee, in Minneapolis, Minn., Hiere is a- stipulation in both the note and mortgage that they are “understood to be made with reference
It is an elementary principle that a contract must be .mutual and no proposition or offer becomes a contract until it is accepted and approved by both parties. It is also the law that “Avhere a contract is delivered or first becomes a binding obligation upon, the parties, is deemed the. place of the contract for the purpose of designating Avhab laAV governs.” — 3 Am. & Eng. Ency. Law (1st ed.), p. 547; McGarry v. Nicklin, 110 Ala. 559. Under the evidence we are constrained to hold that the note and mortgage Avere executed in Minnesota, and therefore a Minnesota contract. — McGarry v. Nicklin, supra, and cases cited therein; Farmers Savings & B. & L. Asso. v.
It was entirely lawful for tbe complainant to borrow money in the State of Minnesota and lawful for the.-respondent to loan him the money there and to secure its repayment by accepting from him a mortgage on lands in Alabama. And the, taking of the mortgage will not change the rule in respect to the- laws of the place which are to govern the transaction as to usury. “The; legal fulfilment of a contract, of loan, on the part of the borrower, is repayment of the money, and the security given is but the means of securing what he has contracted for, which, in the eye of the law, is-, to pay where he borrows, unless- another place1 of payment be expressly designated by the contract.” — DeWolf v. Johnson 10 Wheat. 368; Tyler on Usury, pp. 88 and 89; 1 Jones on Mortgages (15th ed.), §§ 657 et seq. Besides the form of the contract adopted by the respondent in making and securing the loan was the usual and customary one employed by it in doing the same business in twenty-four States and is substantially the same form employed by it since its organization. — Bennett v. Eastern B. & L. Asso., 34 L. R. A. 595.
Furthermore, if it be conceded that we are mistaken in our finding of the fact from the evidence that the note and mortgage were delivered in Minnesota, but were in fact delivered in .Alabama,, yet the evidence fails to establish that the stipulations in said note and mortgage “understood to be made with reference to- and under the laws of the State of Minnesota” were a mere device to evade the .usury laws of this ’State. No such sinister purpose, appears in the contract, and the evidence fails to afford any reasonable inference that there existed any such sinister motive in making the note payable in Minnesota,. — Hayes v. Southern Home B. & L. Asso., and Pioneer Savings & Loan Co. v. Nonnemacher, supra.
Reversed and remanded.
