Armstrong v. Freeman
| Decision Date | 01 July 1879 |
| Citation | 2 N.W. 353,9 Neb. 11 |
| Parties | JAMES M. ARMSTRONG, APPELLEE, v. DANIEL FREEMAN AND AGNES S. FREEMAN, APPELLANTS |
| Court | Nebraska Supreme Court |
W. H Ashby and Daniel Freeman were owners in fee simple of a certain lot in the city of Beatrice, Gage county. Ashby conveyed his undivided half to Freeman for an agreed price of $ 350, and in payment therefor Freeman gave his note, secured by a mortgage on the lot, signed by himself and wife Ashby having arranged with Armstrong to sell him the note and security for $ 275 cash in hand, had the note and mortgage made directly to Armstrong, who brought suit in the district court to foreclose the same. In their answer to the petition of the plaintiff, the defendants alleged that the said note with the mortgage to secure the same, was given by the defendants to the plaintiff for the loan of $ 350, for two years, and that the sum of $ 75 was reserved by plaintiff and taken out of said loan of $ 350 as illegal and usurious interest, and the said note was drawn for the full sum of $ 350, with 12 per cent interest thereon from the date of said note, and that the amount actually received by defendant on said loan, for which said note was given, was the sum of $ 275, and no more; that there was due from defendants to plaintiff on said note only the sum of $ 275, without interest. The plaintiff for a reply denied each and every allegation of defendants' answer. The case was tried to the court, WEAVER, J., and the court found generally for the plaintiff, and that the full amount claimed in plaintiff's petition was due from defendants to plaintiff, and a decree of foreclosure was rendered accordingly, and the plaintiff recovered his costs. To which finding and decree the defendants excepted, and from which they appeal to this court.
AFFIRMED.
Colby & Hazlett, for appellants.
The transfer of interest of Ashby to Freeman in the mortgaged premises could be considered in no other light than as a shift to evade the statute. Such attempted shifts and devices, when they have been brought before the courts have been universally held to be usurious. Richards v. Kountze, 4 Neb. 205. Cheney v. White, 5 Neb. 261. Cheney v. Woodruff, 6 Neb. 151. Lowe v. Waller, 2 Doug., 736. Ruffin v. Armstrong, 2 Hawks, 411. Rose v. Dixon, 7 Johns., 196. Seymour v. Strong, 4 Hill, 255. Shanks v. Kennedy, 1 A. K. Marsh., 65. Schemerhorn v. Tallman, 14 New York, 93. Griffin v. New Jersey Oil Co., 3 Stockton, 49. Mitchell v. Preston, 5 Day, 100. Pratt v. Adams, 7 Paige Ch., 615. Torrey v. Grant, 10 Smedes & Marshalls' Reports, 89.
The evidence shows that Armstrong was in the money loaning business, and that Freeman, who was represented by Ashby in the transaction, was hard up and wanted to borrow, and the only object he had in the transaction was to obtain the money. Armstrong did nothing in the transaction but advance $ 275, and take Freeman's note for $ 350 with 12 per cent interest from date. He made no purchase, sale, trade, barter, or bargain--incurred no risk, and assumed no obligation.
Hardy & Sabin, for appellee.
Was there usury in the note and mortgage? "To constitute usury there must be a loan, or a good consideration for the forbearance of a loan in contemplation by the parties--it must be an original contract." Nebraska Digest, page 272. Nicholls v. Fearson, 7 Peters, 103. McGill v. Ware, 4 Scam., 24. Richards v. Kountze, 4 Neb. 205. In cases cited by defendant in 5 Nebraska, 261, and 6 Nebraska, 151, no such question was considered as is by this case presented. There the plaintiff sent his money to an agent to loan, and the agent exacted and took from the borrower a commission out of the money loaned over and above lawful interest. This was properly held to be usury. These cases do not apply to the suit at bar, in which the defendant borrowed no money, nor paid, nor is required to pay, any bonus, and only to pay for the land he bought. We fail to see any authority cited by defendant that tends to show such a state of facts usurious. We deem this largely a question of fact, and that the law of usury is well settled. Usury is a defense in part, and must be proved. The onus probandi is upon the party pleading it.
The only defense made in the court below was that of usury, and this was not sustained. The propriety of this decree seems to depend...
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