Allen v. Dunn

• Decision Date: 05 May 1904
• Docket Number: 13,474
• Citation: 99 N.W. 680,71 Neb. 831
• Parties: JULIAN S. ALLEN ET AL., APPELLANTS, v. PRISCILLA DUNN ET AL., APPELLEES
• Court: Nebraska Supreme Court

99 N.W. 680

71 Neb. 831

JULIAN S. ALLEN ET AL., APPELLANTS, v. PRISCILLA DUNN ET AL., APPELLEES

No. 13,474

Supreme Court of Nebraska

May 5, 1904

APPEAL from the district court for Garfield county: JAMES N. PAUL JUDGE. Affirmed.

AFFIRMED.

J. A Douglas and Guy Laverty, for appellants.

C. I Bragg and E. J. Clements, contra.

KIRKPATRICK, C. DUFFIE and LETTON, CC., concur.

OPINION

KIRKPATRICK, C.

On the 4th day of September, 1886, Priscilla Dunn procured a loan of $ 600 from the American Investment Company. A note and mortgage were executed to P. O. Refsil, who seems to have been acting as a trustee for the investment company. A mortgage was given on certain lands in Garfield county to secure the loan. Soon after the note and mortgage were made, they were sold to the trustees of the estate of William S. Pierson. Subsequently, and after the commencement of this foreclosure proceeding, the trustees died, this cause having been revived in the name of the present appellants.

The defense interposed by the appellees is that the contract for the loan was usurious. The trial court so found, and the cause is brought to this court on appeal. The correctness of the judgment of the trial court is challenged upon three grounds: First, that the trial court erred in adjudging the contract usurious; second, that, even if it is usurious, appellees failed to establish this defense by competent evidence; third, that, in any event, the note and mortgage were sold long before maturity, for value, in the usual course of business, and, for that reason, the defense of usury can not be successfully interposed.

Regarding the contention last mentioned, it is disclosed that the mortgage contains a provision in the language following: "It is further agreed that, in case any taxes or assessments shall be levied against the legal holder of this indebteness on account of this loan, within the state or territory in which the property mortgaged shall be situate, the said party of the first part agrees to pay the same." The note and mortgage were executed on the same day, and are parts of the same transaction, and must be construed together. In the case of Consterdine v. Moore, 65 Neb. 296, 96 N.W. 1021, this court had under consideration a mortgage containing a condition identical in language with that quoted above; and in that case it was expressly held, that such a provision in a mortgage rendered the note which it secured, the note and mortgage being parts of the same contract, nonnegotiable. To the same effect is Garnett v. Myers, 65 Neb. 287, 94 N.W. 803. We are content with the doctrine announced in these cases, and upon their authority the note in controversy is nonnegotiable, and it follows that appellants are in no better position than the payee named in the note.

The first question argued by appellants, and mentioned as first in this opinion, is, whether the transaction as detailed by appellees is, in fact, usurious. The testimony discloses that appellees desired a loan of $ 600. There is some uncertainty under the evidence, whether the written application for the loan signed by appellees was for $ 600 or for $ 690. But, in any event, appellees only desired a loan of $ 600, and this is the amount of money received. The note and mortgage which appellees executed were for $...