Adamson v. Lilienthal

• Decision Date: 25 June 1948
• Docket Number: No. 32069.,32069.
• Citation: 48 S.E.2d 579
• Parties: ADAMSON. v. LILIENTHAL.
• Court: Georgia Court of Appeals

48 S.E.2d 579

ADAMSON.

v.LILIENTHAL.

No. 32069.

Court of Appeals of Georgia,

Division No. 1.

June 25, 1948.

Rehearing Denied July 9, 1948.

Syllables by the Court.

1. A loan of $3200.00, made on April 22, 1947, where the borrower conveys certain real estate under a deed to secure debt as security, and where the principal and interest is payable in monthly installments of $69.33, each, beginning on May 22, 1947, with the final payment becoming due on April 22, 1952, is in accordance with, and comes under the provisions of Code Ann. § 57-116, and is not usurious.

2. "Where a debt, including both principal and interest and due by installments, if paid according to the terms of the contract is free from usury, the transaction is not rendered usurious by the voluntary payment of the debt in full before some of the installments matured, although as a result the creditor would receive in the aggregate, a sum amounting to more than the principal and the legal rate of interest." Held: This principle is applicable to contracts coming under the provisions of Code Ann. § 57-116.

3. The court did not err in his judgment sustaining the general demurrers to the plaintiff's petition.

Error from Superior Court, DeKalb County; Frank Guess, Judge.

Suit by George T. Adamson against Madeline H. Lilienthal for recovery of a sum allegedly paid to defendant as usurious interest. To review the judgment plaintiff brings error.

Judgment affirmed.

George T. Adamson filed suit in DeKalb Superior Court against Mrs. Madeline H. Lilienthal for the recovery of $959.80, said sum allegedly having been paid as usurious interest to the defendant.

In substance the petition, as amended, alleged: On April 22, 1947, the defendant lent the plaintiff $3200.00, and plaintiff executed a deed to secure debt conveying certain realty to the defendant, a copy of which is attached and made a part of the petition. This deed provides that the debt is evidenced by 60 notes for $69.33 each, payable monthly, beginning May 22, 1947, the final payment being due on April 22, 1952. Plaintiff paid five of these notes, amounting to $346.55, and, on October 8, 1947, paid defendant an additional amount of $3813.15, as the balance due for lawful principal and interest, and secured a cancellation of the deed and a surrender of the notes. Recovery is sought for $959.80 as being in excess of the lawful and legal rate of interest permitted by the law of Georgia, and, therefore, recoverable under the law which voids the collection of all interest where the same is usurious.

Defendant filed a general demurrer to the petition, which was renewed after the petition was amended, and the case is here on exceptions to the judgment sustaining these demurrers.

Marvin O'Neal, Jr. and Ernest H. Stanford, both of Atlanta, for plaintiff in error.

Smith, Kilpatrick, Cody, Rogers & McClatchey, of Atlanta, for defendant in error.

SUTTON, Chief Judge (after stating the foregoing facts).

1. "Any person, natural or artificial, in this State, lending money to be paid back in monthly, quarterly, or yearly installments, may charge interest thereon at six per cent, per annum or less for the entire period of the loan, aggregating the principal and interest for the entire period of the loan, and dividing the same into monthly, quarterly or yearly installments, and may take security therefor by mortgage with waiver of exemption or title or both, upon and to real estate or personal property or both, and the same shall be valid for the amount of the principal and interest charged; and such contract shall not be held usurious." Code Ann. § 57-116 (Ga.L.1912, p. 144; 1937, p. 463.) A loan of $3200, made on April 22, 1947, where the borrower conveys certain real estate under a deed to secure debt as security for the loan, and where the principal and interest is payable in monthly installments of $69.33, each, beginning on May 22, 1947, and the final payment becoming due on April 22, 1952, as in the present case, is in accordance with, and comes under the provisions of Code Ann. § 57-116, and the contract is not usurious. See Osborne v. National Realty Management Company, 182 Ga. 892, 893(1), 187 S.E. 56; and compare with Green v. Equitable Mortgage Company, 107 Ga. 536, 33 S.E. 869, decided prior to the passage of the act of 1912 (Ga.L.1912, p. 144; Code § 57-116).

2. "Where a debt, including both principal and interest, and due by installments, if paid according to the terms of the contract is free from usury, the transaction is not rendered usurious by the voluntary payment of the debt in full before some of the installments...