18 Ark. 369 (Ark. 1857), Ruddell v. Ambler

Citation:18 Ark. 369
Opinion Judge:Hanly, J.
Party Name:RUDDELL et al. v. AMBLER.
Attorney:Jordan, for the appellants.
Court:Supreme Court of Arkansas
 
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Page 369

18 Ark. 369 (Ark. 1857)

RUDDELL et al.

v.

AMBLER.

Supreme Court of Arkansas.

January, 1857

��������� Although the statute (Digest, chapter 90, sec. 7) makes all bonds, bills, notes, assurances, conveyances, and all other contracts or securities whatsoever, taken upon a usurious consideration, void: yet if the debtor comes into a court of chancery to set aside such contract, on account of usury, he must, before he shall be entitled to relief therefrom, whether the usury be established by the answer, or other proof, pay or offer to pay the principal actually borrowed, or advanced to him, with legal interest.

���������A mortgage with power of sale, or deed of trust, given to secure the payment of money advanced or loaned upon a usurious contract, is void, and will be so decreed by a court of equity; but where the debtor comes into court to set aside such conveyance, the court will hold the property pledged, as a security for the payment of the sum actually loaned with legal interest.

���������Where the debtor comes into a court of equity to be released from a usurious contract, or to set aside the securities given therefor, he must pay, or tender the whole amount of principal and interest; or the court will, upon demurrer, dismiss his bill: but if the defendant answer the bill generally, the court will proceed to render such decree as may be consistent with equity and good conscience.

��������� Appeal from the Circuit Court of Independence Countg in Chancery. Hon. Beaufort H. Neely, Circuit Judge.

��������� Jordan, for the appellants.

���������Hanly, J.

��������� This was a bill in chancery, brought by the appellee against the appellants, in the Independence circuit court, praying, among other matters, that the appellant-Ruddell, might be enjoined or restrained from proceeding to recover judgment against the appellee, on the law side of the court, upon a certain money bond, on the ground that it was usurious and void; and that the appellants might further be restrained from foreclosing, by sale, a certain deed of trust, which had been made and executed by the appellee to the appellant, Byers, as trustee for his co-appellant, Ruddell, to secure the payment of the alleged usurious money bond, upon which the action sought to be enjoined, was alleged to be founded.

���������Both appellants filed separate answers, and on the coming in of their answers, the appellee filed an amended and supplemental bill, in which it was charged that, since the exhibition of his original bill, the appellant, Byers, had proceeded to foreclose and sell the land named and specified in the deed of trust made to him, as trustee for his co-appellant, to secure the payment of the usurious debts set forth in his original bill; that appellant, Ruddell, had become the purchaser of the land, under such sale, for the price of four hundred dollars, which sum was entered as a credit on the usurious money bond; and praying, among other matters, that the sale by Byers to Ruddell, under the deed of trust, might be cancelled and declared void-that the possession of the land be divested out of Ruddell and restored to appellee, and that both appellants might be per-petually enjoined from further proceeding under the deed of trust, and the assertion of title under the sale and purchase of the land thereunder.

���������The appellants filed separate answers, also, to the amended and supplemental bill. Issue was taken to the several answers of the appellants, by replications in short, by consent.

���������The pleadings being thus made up in the cause, it was set down for hearing upon the original, amended and supplemental bills, the answers of the appellants to each, and the replications of appellee to those answers, and the several exhibits made by the parties respectively.

���������The cause was heard on the 26th March, 1855, when, the record shows, the following facts, in substance, were elicited:

���������on the law side of the Independence circuit court, to coerce the collection of the balance due on the writing obligatory or money bond, after the credit of the $400 was given thereon, as the price and value of the land sold by Byers to Ruddell, under the deed of trust as above.

���������On this state of facts, the court below, upon the hearing, decreed that the consideration, for which the writing obligatory and deed of trust had been executed, was usurious in the purview of the statute in such case made and provided, and as such that those securities were void in law and equity: declaring, also, that the sale by Byers to Ruddell, under the deed of trust, with the proceeds to pay off and extinguish the writing obligatory or money bond. That the deed of trust so executed was duly acknowledged and recorded in the county of Independence, as the law in such cases directs and requires, and that under the power to sell contained therein, Byers, in...

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