Adler & Sons Clothing Co. v. Corl

• Decision Date: 14 March 1900
• Citation: 155 Mo. 149,55 S.W. 1017
• Parties: ADLER & SONS CLOTHING CO. v. CORL.
• Court: Missouri Supreme Court

55 S.W. 1017

155 Mo. 149

ADLER & SONS CLOTHING CO. v. CORL.

Supreme Court of Missouri, Division No. 1.

March 14, 1900.

ATTACHMENTS—GROUNDS—MORTGAGE — USURIOUS DEBT — CONSTITUTIONAL LAW — APPEALS —ERRORS NOT SUGGESTED—PRESUMPTION.

1. Acts 1891, p. 171, declaring that a conveyance securing a usurious debt shall be illegal and invalid, is not unconstitutional.

2. Giving a mortgage to secure a debt on which usurious interest had been paid was not a fraudulent disposition of defendant's property with intent to hinder, delay, and defraud his creditors, rendering him liable to be sued by attachment.

3. Where an appeal was taken from a judgment on a plea in abatement and on the merits, and appellant's brief suggests no error in the rendition of the judgment on the merits, it will be presumed there was none.

Appeal from circuit court, Jasper county; Joseph D. Perkins, Judge.

Action by the David Adler & Sons Clothing Company against S. C. Corl. From a judgment in favor of plaintiff, defendant appeals. Modified.

Frank L. Forlow and Hugh Dabbs, for appellant. McReynolds & Halliburton, for respondent.

VALLIANT, J.

Plaintiff brought suit by attachment against defendant on claims aggregating $1,136. There were several grounds of attachment stated in the affidavit; among them that defendant had fraudulently disposed of her property with intent, etc. Defendant filed a plea in abatement to the attachment, and an answer to the petition on its merits. Upon a trial on the plea in abatement there was a verdict for plaintiff, and on a trial on the merits there was also a finding and judgment for the plaintiff for the amount of its claims. The evidence on the part of the plaintiff tended to prove that defendant, who was a merchant, had given deeds of trust on her stock in trade to certain banks in Joplin and Webb City to secure notes of hers which the banks, respectively, had discounted, and at the date of the deeds still held; that in discounting the notes the banks had charged and received a rate of 1 per cent. a month, and during the time they carried the loans from the date of the notes up to the date of the deeds, which was several months, the defendant had paid them interest at that rate. The deeds of trust, however, seem to have been given for the face principal of the notes, without interest. Upon this evidence the court instructed the jury to find for the plaintiff on the plea in abatement. The defendant asked instructions to the effect that giving a deed of trust to secure a note upon which the payee had exacted and received usurious interest was not a fraudulent disposition of property within the meaning of the statutes in relation to attachments, and also that the statute concerning usury approved April 21, 1891 (Acts 1891, p. 171), was invalid, because in violation of certain provisions of the constitution specified. The court refused these instructions. Exceptions were duly preserved, and the cause is here on defendant's appeal in due course of procedure. Appellant has filed an abstract of the record and an assignment of errors, among which is included the refusal of the instructions asked by defendant. Thus a question as to the constitutionality of the statute was presented in tangible form in the circuit court, and is in the record here, and gives this court jurisdiction. The record presents two questions for our consideration: First. Is the act entitled "An act providing that usury may be plead in civil actions," etc., approved April 21, 1891, invalid, as in violation of any provision of the constitution of this state? Second. Is the giving of a mortgage or deed of trust to secure a deed bearing usurious interest, or upon which usurious interest has been paid, a fraudulent disposition of one's property, so as to render him subject to be sued by attachment?

1. The question relating to the constitutionality of the act of 1891 in relation to usury has so recently been decided by this court that it is only necessary now to refer to that decision as settling the question here. Kreibohm v. Yance (Mo. Sup.; officially reported) 55 S. W. 261. The question was then carefully considered, and in an elaborate opinion by Brace, P. J., the history and development of the law of usury was shown, and the unquestionable validity of the statute demonstrated. The act is constitutional.

2. Upon reading the opinion in the case just cited, it will be seen that the right to take interest, the limitation on that right, and the consequences arising upon its use or abuse are matters of purely statutory enactment, and therefore all questions as to rights and liabilities are to find their answer in the letter or meaning of the statute. While usurious exactions have always been regarded with disfavor, yet they have been classed as extortions, rather than frauds. The supreme court of New York said: "Usury involves no particular moral turpitude. It consists in the violation of a statute forbidding the taking of more than seven per cent. on the loan and forbearance of money. There is no special appropriateness in terming such an agreement corrupt in a civil...