59 Ga. 584 | Ga. | 1877
The note sued upon was for six hundred dollars. It was dated January 9, 1872, and due by the 25th of December thereafter. It purported, on its face, to be given for purchase money of certain described land. There was a plea of ■ “ not indebted.” Other pleas set up usury, and payment of the same, to the amount of five hundred and ten dollars. The pleas did not allege that the note was given for a loan of money, nor did they allege that there was usury in the note itself, or in the contract out of which it arose. They averred that the note was given “ as a balance of purchase money to plaintiff,” for the land described; and that “ after-wards, to-wit: on the 19th of January, 1872, plaintiff required of, and received from, defendant, his additional note for the sum of $100.00 as rent for said land, so purchased, which rent was usurious interest at the rate of twenty per cent, on the purchase money of said land, and which usurious interest was, by defendant, paid to plaintiff. Also, on January 17, 1873, defendant likewise gave his note, claiming to be for rent, (which likewise was for usury,) in the sum of $120.00; and other usurious notes, to-wit: January 26, 1871, for $120.00; January 16, 1875, for $120.00; May 4, 1875, for $50.00, making, in the aggregate, the sum of $510.00, which was usurious and unlawful interest received by plaintiff of, and from, this defendant on the said case, to the account of purchase; and all of which amount defendant here claims to be allowed to him as set-off and as payment on said original note now sued on,” etc. “The de
At the trial (the note declared upon being in evidence for the plaintiff) the defendant testified, in substance, that he purchased the land, in 1869, of one Clayton, at the price of $2,000.00, talcing his bond for titles. A balance of the purchase money, amounting to $666.66 remained unpaid, and was due January 1, 1872. Clayton proposed to take $400.00 for this debt. Defendant agreed to give it if he could raise the money. ITe applied to plaintiff to borrow the amount. Plaintiff agreed to let him have it, but said he would take up the debt from Clayton, take a deed to the land, and give defendant a bond for titles, if defendant would pay him rent on it until the purchase money was paid — the rent to be twenty per cent, on the sum that defendant was to pay plaintiff for the purchase of the land; said he would not take a:iy interest on the purchase money note, but that defendant must pay him twenty per cent, rent, as this was the only way he could collect his money. He also said defendant must pay him $100.00 for making the trade. These terms were agreed to, and defendant gave the note now in suit, which included the $400.00 paid Clayton, the $100.00 for making the trade, and $100.00 then loaned by plaintiff to defendant, out of which plaintiff retained $20.00 as per centage. On the 9th of January, 1872, plaintiff paid Clayton $400.00, took a deed for the land, and made defendant a bond for titles. The note was given on that day, and on the same day was given another note, for $100.00, the latter due at the same time as the former, (25th of December, 1872,) and expressed to be for rent. Subsequently, as called on by the plaintiff, defendant gave
Cited for plaintiff in error: 52 Ga., 69; Archer vs. Underwood, this term; acts of 1871-2, p. 75; acts of 1873, p. 52; acts of 1875, p. 105.
For defendant: Tyler on Usury, 207; Comyn on Usury, 142, 143, 144; 8 Ga., 113; 22 Ib., 313; 31 Ib., 140.
Judgment reversed.