Brown v. Marion Nat. Bank
| Decision Date | 20 February 1892 |
| Citation | 18 S.W. 635,92 Ky. 607 |
| Parties | Brown v. Marion Nat. Bank. |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Marion county.
"To be officially reported."
Action by J. Q. Brown, assignee, against the Marion National Bank to recover back usurious interest paid on certain notes. Judgment for plaintiff being for less than he claimed, he appeals, and defendant files cross-appeal. Reversed on appeal, and affirmed on cross-appeal.
Appellant Brown, to whom a deed of trust was made by L. and E. Baxter for benefit of creditors, brought this action under sections 5197, 5198, Rev. St. U.S., to recover back from appellee Marion National Bank, twice the amount of interest paid on certain promissory notes. He had previously instituted another action for settlement of estates of the insolvent debtors and distribution of assets among creditors, in which appellee had presented and filed the notes mentioned for payment; and the two actions appear to have been consolidated, and the questions arising in each between the parties to this appeal were determined by the judgment now before us for revision. That judgment was in substance for twice the amount of $297.25, made up of the following recited sums, paid as interest on two notes within two years prior to institution of first-mentioned action, at a greater rate than 6 per cent., to-wit: On note for $4,500, $160 paid November 1, 1889, and $107, paid May 4, 1890; and on a note for $650 $15, paid January 24, 1890, and $15, September 30, 1890. It was at the same time further adjudged that the entire interest carried by the several notes filed be forfeited, as 7 per cent. per annum appears upon face of each as the rate charged, and that only the principal is payable out of the trust-estate. The judgment was at the time excepted to by plaintiff, now appellant, because- First, $160.25 interest, paid April 29, 1889, on the note for $4,500, is not included; second, only interest on the several notes is adjudged forfeited, whereas all that had accrued previous to respective dates of and included in the amounts of them should have been. Appellee, on cross-appeal, seeks reversal, because entitled to interest at 6 per cent., not allowed from date of the judgment.
By section 5197 each national bank is authorized to take and charge interest at the rate allowed by law of the state where it is situated; and section 5198 is as follows: ...
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...the power to draw any interest. The vice is in charging usury, and demanding usury by suit does not purge the transaction of usury. Brown v. Bank, 92 Ky. 607; Petersburg Bank v. Childs, 133 Mass. Shaffer v. Bank, 53 Kan. 614; Lucas v. Bank, 78 Pa. St. 228; Danforth v. Bank, 48 F. 277; Bank ......
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...case, we have fully considered the cases of Alves v. Bank, 89 Ky. 126, 9 S.W. 504; Bank v. Alves, 91 Ky. 142, 15 S.W. 132; Brown v. Bank, 92 Ky. 609, 18 S.W. 635; Sydner v. Bank, 94 Ky. 231, 21 S.W. It results that the court properly canceled the note for $316.25, but erred in not rendering......
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