124 Ga. 857 | Ga. | 1906
(After stating the foregoing facts.) The plaintiff in the suit upon the note was induced to take up the note by the defendant after its maturity, and, when suit upon the note was brought, the defendant pleaded usury in the original transaction. It does not appear that the plaintiff knew of the usury when he bought the note. Would the silence of the defendant as to the existence of usury, when the note had-been bought by the plaintiff at his solicitation, work an estoppel against his plea of usury? In Henry v. McAllister, 99 Ga. 557, the rule was laid down: “One who makes a usurious note and secure's its payment by executing a deed to' realty, the usury not appearing upon the face of the papers, is, as against another whom he induces to purchase the note by representing that it and the deed ‘are .valid and all right’ (the purchase being made in good faith and in ignorance of the usury), estopped from setting up the usury in the transaction.” It is true that in the present case the defendant did not tell the plaintiff in words that the note was valid and all right, but his silence as to anything which would impair its validity amounted, under the circumstances,, to such an assurance. The facts in the case of Campbell v. Morgan, 111 Ga. 204, are perhaps more similar to the one under consideration ; and in that case it was said: “When the notes fell due, plaintiff tried to get Morgan to pay them off, and Morgan’s reply was a request that plaintiff pay them off as they matured, and that he would reimburse plaintiff for his expenses in so doing. This conduct on the part of the maker clearly estops him from impeaching the validity of his title on the ground of usury. To allow such a defense would be giving the debtor the privilege of taking advantage of his own fraud perpetrated upon his creditor.” The court below was right in overruling the certiorari as to Caleb Walker.
Judgment affirmed.
