Walter v. Foutz, 52 Md. 147

Walter v. Foutz

52 Md. 147 | Md. | 1879

Grason, J.,

delivered the opinion of the Court.

From the record in this case it appears that in August, 1871, there was an arrangement made by which the ap*151pellants were to obtain a loan, for two years, from tbe appellee, of tbe sum of thirty-seven hundred dollars. A mortgage for that amount was accordingly executed and delivered by the appellants to the appellee, and at the same time there were also signed and delivered to him four notes for the interest on thirty-seven hundred dollars, payable in six, twelve, eighteen and twenty-four months. The appellants, however, received from the appellee, but thirty-four hundred and seventy-eight dollars, two hundred and twenty-two dollars having been retained by the appellee as a bonus. In August, 1813, the time for the payment of the loan was extended, other interest notes being given, and the further sum of two hundred and sixty-two dollars being demanded by the appellee and paid by the appellants. In August, 1875, the loan was again extended for two years more, interest notes were - given, and. the sum of one hundred and thirty-one dollars was demanded by the appellee and paid by the appellants. Upon the expiration of the time for the re-payment of the loan, default was made and the mortgaged premises were sold. The auditor stated an account which was finally ratified, but upon the petition of the appellants the Court below ordered other accounts to be stated, upon the evidence then in the case and thereafter to be adduced, under the instructions of the solicitors of the respective parties. The first account which had been ratified was filed in Court by the auditor by direction of the solicitor of the appellee, and another account was stated under the instructions of the solicitor of the appellants, by which certain payments made to the appellee, and alleged to he usurious, with interest thereon from their times of payment, were allowed as credits upon the mortgage. To this account the appellee filed exceptions which were sustained, the account rejected, and the account stated under the appellee’s instructions was finally ratified, and from the order thus disposing of the accounts this appeal was taken.

*152It was 'contended by tbe solicitor of tbe appellee that as no exception was taken in the Circuit Court of Baltimore City, to the account which was ratified, this appeal is not properly in this Court, and referred, in support of. this proposition, to the case of The Citizens’ Security and Land Company of Baltimore vs. Wilson, 50 Md., 90. In that case, however, there was but one account stated by the auditor, and to that no exceptions were filed. But the law is different where accounts are stated to represent the views and claims of the parties to the cause, under their instructions, and no exceptions are then required by either party, and objections may be taken to the accounts. This was expressly decided by our predecessors in the case of Dennis and Rush vs. Dennis’ Executors, 15 Md., 150. The accounts filed in this case were stated under an order of Court, which directed the auditor to state accounts from the evidence then in the cause and thereafter to be adduced before him, and under the instructions of the solicitors of the respective parties, and they were so stated, and are, therefore, under the decision above referred to, properly before this Court for review.

The exceptions filed to the account stated under the instructions of the solicitor of the appellants, relies upon the Statute of Limitations, to defeat their claim to have the payments, alleged to be usurious, credited against tbe mortgage debt. If such payments were tainted with usury, this defence cannot avail the appellee. Where usurious interest has been exacted, it must be credited as of the time of its payment, to the payment of the legal interest, if there be any due, and if not, then to the principal debt. No point was made upon this exception by the appellee’s solicitor, either in his brief or argument, and it may be inferred that it was abandoned.

Another ground of exception to that account was, that the mortgaged premises had been sold for taxes after the execution of the mortgage, and purchased by the appellee. *153This ground of objection may also be regarded as having been abandoned, as no point was made upon it either in the brief or argument of the appellee’s solicitor, especially in view of the fact that the taxes were allowed out of the proceeds of the sale under the mortgage, in both the accounts filed by the auditor.

The only remaining question to be decided is, was the retention of the sum of two hundred and twenty-two dollars from the amount, to secure the payment of which the mortgage was given, and the demand and payment of the two other sums upon the extension of the loan usurious transactions ? It is perfectly clear that the first mentioned sum retained from the amount of the loan was a bonus for the loan, for it is admitted to be such in express terms by the appellee’s solicitor, in a statement furnished by him to the appellants. The other two sums could not have been paid to Mr. Slingluff for services rendered the appellants, as suggested by him, inasmuch as the record shows that he was acting as solicitor of the appellee during the whole time through which the loan and its extensions ran, and it cannot be presumed that he acted as solicitor, or counsel, for both parties. Neither could it have been paid as commissions for Mr. Crowl, as the record does not show that he had any connection whatever with the transaction between the parties, nor is he even named in the record. These payments were in excess of the legal interest, for which interest notes were given. The sum deducted from the loan at the time it was made is admitted to have been a bonus, and Mr. Walter swears that the payment of the other two sums was demanded as a condition of the continuance of the loan, and no witness was produced to contradict his evidence, which could readily have been done if what he swore to was not the truth. We think it clear that all these sums were demanded by the appellee, and paid by the appellants, as a consideration for the loan and the *154extensions of the time of re-payment. That such transactions are usurious cannot he questioned since the decision by this Court in the case of Andrews vs. Poe, 30 Md., 487, 488. In that case the mortgage was given to secure the re-payment of a loan of six thousand dollars ; the mortgagee gave the mortgagor his check for the six thousand dollars, and received from him the legal interest, and in addition the sum of seven hundred and twenty dollars, and that transaction was held to he usurious. Viewing the facts and circumstances of the case now before us in the light of the law as applied 'to the case of Andrews vs. Poe, it is clear that the demand and payment of the sums of money at the times of making and extending the time for re-payment of the loan, were usurious transactions, and that the appellants are entitled to have the three sums thus paid credited upon the mortgage debt as of the times they were paid.

(Decided 20th June, 1879.)

The order appealed from will he reversed with costs, and the cause remanded for further proceedings.

Order reversed tuiih costs, and

cause remanded.