Armstrong v. Freeman

• Decision Date: 30 September 1879
• Parties: JAMES M. ARMSTRONG, APPELLEE, v. DANIEL FREEMAN AND OTHERS, APPELLANTS.
• Court: Nebraska Supreme Court

9 Neb. 11

2 N.W. 353

JAMES M. ARMSTRONG, APPELLEE,

v.DANIEL FREEMAN AND OTHERS, APPELLANTS.

Supreme Court of Nebraska.

Filed September, 1879.

Appeal from the district court for Gage county.

Hardin & Sabin, for appellee.

Colby & Hazlitt, for appellants.

LAKE, J.

The only defence made in the court below was that of usury, and this was not sustained. The propriety of the decree seems to depend solely upon questions of fact, which, although there were no special findings, it is fairly presumable were passed upon by the district court.

It is a rule of this court that the findings of inferior tribunals upon questions purely of fact will not be interfered with unless found to be clearly against the weight of evidence. And this rule applies to all cases, whether they come here by petition in error or on appeal.

The evidence upon the question of usury is not very conflicting, and we think not only supports the conclusion of the district court, but would hardly warrant any other. By it the following facts appear to be very clearly established: First, that the defendant Freeman, and W. H. Ashby, were equal joint owners of the premises upon which the mortgage was subsequently given; second, that Ashby, being desirous of converting his share into money, offered to sell it for $350: Freeman became the purchaser at that price, for which he gave the note and mortgage now in controversy; third, that during the negotiations resulting in this sale Ashby arranged with Armstrong to sell him the note and mortgage, if he obtained them, for $275, cash in hand; fourth, at the request of Ashby, and to save the trouble of transferring them, the note and mortgage were made direct to Armstrong, from whom Ashby then received the price which he had agreed to take for them.

These appear to be the material facts brought out by the testimony, and we see nothing in them from which the vice of usury can be legally inferred. There is no testimony to show that the sale of these premises was a mere device to evade the law, or that it was any other than bona fide. Ashby fixed upon a price for his interest in the land which, for aught that was shown, was reasonable, and Freeman agreed to give it, executing his note and mortgage therefor. This consideration belonged to Ashby, and he was at liberty to dispose of it as he pleased. He could retain, sell, or give it away. That he chose to sell it at a discount, which he had a perfect right to do, is no concern of Freeman. It is...