Archer v. Mccray

• Decision Date: 31 August 1877
• Citation: 59 Ga. 546
• Parties: William Archer, plaintiff in error. v. James McCray, administrator, defendant in error.
• Court: Georgia Supreme Court

59 Ga. 546

William Archer, plaintiff in error. v. James McCray, administrator, defendant in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

Equity. Specific performance. Usury. Contracts. Novation. Before Judge Pottle. Hancock Superior Court. October Term, 1876.

William D. Underwood having died after the writ of error issued in this case, his administrator, James McCray, was made a party in this court in his stead.

For the facts, see the opinion.

C. W. DuBose; Seaborn Reese, for plaintiff in error.

George F. Pierce, Jr.; J. T. Jordan, for defendant.

JACKSON, Judge.

This was a bill filed by Underwood against Archer, alleging that the complainant had purchased lands from one Ely, and borrowed $2,400 00 from Archer to complete the payment, the price being $3,500 00. and Underwood paying the balance himself. It was alleged that the deed was made by Ely to Archer so as to secure Underwood's debt to him, and that Underwood went into possession and gave rent notes to Archer to cover up the usury charged for the loan of the $2,400 00; that Underwood paid what he could from year to year, and sold part ofthe lands to help pay Archer, and had fully paid for the remainder of the land, if what he *paid was applied to principal and lawful interest; but that Archer charged sixteen per cent., covered up with the rent notes, and had levied a distress warrant for $1,300.00, which he claimed as still due from Underwood, and was enforcing it against the latter.

The prayer of the bill is for a specific performance of the parol agreement, and the making a deed by Archer to Underwood for the balance of the land, Underwood offering to pay what was legally due—principal and lawful interest—if any was due.

The defense set up was that Archer bought for himself, and denied the facts charged; that the claim of usury was barred because, by annual accountings between the parties, the usury was settled, and the statute limiting the recovery of any after six months, operated and barred the right to recover it at all; and that by a novation of the contract when one Hitchcock was taken in as joint purchaser and borrower with Underwood, all the usury before that time was purged in law, and none was charged and exacted afterwards.

1. The transaction, as set up by the bill, is abundantly proved by the evidence. The testimony is overwhelming that Underwood bought from Ely; that Archer never even saw the land, and was simply a lender of the money to Underwood, and took the title in himself to secure the loan at sixteen per cent, per annum interest, and gave bond every year to Underwood to make him title on paying the balance due. If all legally due was paid, then Underwood had the right to have title made him, for the transaction was but a mortgage. 46 Ga.,...