Anglo-American Land, Mortg. & Agency Co. v. Brohman

• Decision Date: 11 November 1891
• Citation: 50 N.W. 271,33 Neb. 409
• Court: Nebraska Supreme Court
• Parties: ANGLO-AMERICAN LAND, MORTGAGE & AGENCY CO., LIMITED, v. BROHMAN ET AL.

33 Neb. 409

50 N.W. 271

ANGLO-AMERICAN LAND, MORTGAGE & AGENCY CO., LIMITED,

v.BROHMAN ET AL.

Supreme Court of Nebraska.

Nov. 11, 1891.

Syllabus by the Court.

An answer setting up the defense of usury must state the particular facts of the alleged agreement in order that the court may see that it was in violation of the statutes of the state. It is not sufficient to allege that the “bond * * * was given in payment of usurious interest by a contract for the payment of the same.”

Appeal from district court, Merrick county; A. M. POST, Judge.

Action by the Anglo-American Land, Mortgage & Agency Company against Mary Brohman and William D. Brohman to foreclose a mortgage. Judgment for defendants on dismissal. Plaintiff appeals. Reversed.D. H. Ettien, for appellant.

J. C. Martin, for appellees.

MAXWELL, J.

This is an action to foreclose a mortgage on real estate. On the trial of the cause the court found the issues in favor of the defendant, and dismissed the action. The court made special findings as follows: “(1) On the 31st day of October, 1885, the defendant Mary Brohman borrowed from the Lombard Investment Company the sum of $1,300, for which she executed her promissory note, due seven years after date, at 6 per cent. interest per annum, payable semi-annually, the interest being represented by coupons attached to said note, due at intervals of six months, the first maturing May 1, 1886, and all providing for interest at 10 per cent. per annum after due. (2) To secure the $1,300 note above described, defendant Mary Brohman and her husband, on the 31st day of October, 1885, executed to the Lombard Investment Company their mortgage upon the premises described in the petition, and in said mortgage it is provided, among other things, that the borrower has the option of paying $100 or any number of hundred dollars of the principal sum at the maturity of any interest coupon on or after November 1, 1888. (3) On the said 31st day of October, 1885, and as a part of the same transaction, and as a further consideration for the use of said sum of $1,300, the said defendant executed to said Lombard Investment Company the note or bond and mortgage involved in this action for $364, due in two years after date, or on the 1st day of November, 1887, and bearing interest at 10 per cent. per annum after maturity. (4) By the agreement aforesaid between defendants and the said Lombard Investment Company the aforesaid sum of $364 represents interest on the principal sum of $1,300 loaned to defendant on said October 31, 1885, at 4 per cent. per annum, for the full period of seven years, and that there was no consideration therefor. (5) The note or bond last above described was indorsed in blank by this Lombard Investment Company, and by it transferred and delivered to the plaintiff before the commencement of this action, and plaintiff is now the owner and holder thereof. (6) Said bond or note and mortgage were not purchased by plaintiff in the usual course of business, before due, for value.”

And the court further states the following conclusions of law: “(1) The plaintiff, the Anglo-American Land, Mortgage & Agency Company, Limited, is not a bona fide owner or holder of the note or bond and...