Chambers v. Cunningham

• Decision Date: 13 March 1916
• Docket Number: 237
• Citation: 184 S.W. 49,122 Ark. 590
• Parties: CHAMBERS v. CUNNINGHAM
• Court: Arkansas Supreme Court

184 S.W. 49

122 Ark. 590

CHAMBERS v. CUNNINGHAM

No. 237

Supreme Court of Arkansas

March 13, 1916

Appeal from Conway Chancery Court; J. M. Martin, Special Chancellor affirmed.

Decree affirmed.

The Appellants, pro sese.

1. The demurrer should have been sustained as appellees' pleading and proof both show that the suit was not prosecuted in the name of the real parties in interest. Kirby's Digest, § 5999; 51 Ark. 293. The property was never the property of the deceased. The mortgage and notes were payable to M. J. and G. L. Cunningham, Jr. and were never in the hands of the deceased, nor assets of his estate. 18 Cyc. 191 p. 1014.

2. The assignment was a subterfuge to get the protection of the constitution barring testimony as against administrators. 35 Ark. 274; 37 Id. 200. It was a fraud. 33 Id. 468; 16 Cyc. 722, 785; 68 Ark. 495. Before the assignment appellants had the right to show usury. 37 Ark 195. The administration is only a scheme and device to hide the usury. 62 Ark. 97; 39 Cyc. 957, 918.

3. Usury was proven. Kirby's Digest, § 5389, 5390; 62 Ark. 97. The renewal of a usurious contract is itself usurious. 39 Cyc. 1003, 1005; 62 Ark. 376; 111 Id 597.

4. Letters of administration were improperly issued; there were no debts to be paid. 35 Ark. 274; 37 Id. 200; 34 Id. 394; 41 Id. 92.

5. There was no consideration except the old usurious debt. 53 Ark. 457; 39 Cyc. 997, 918.

Sellers & Sellers, for appellee.

1. The demurrer was properly overruled. 83 Ark. 495. There were some debts to be paid. The probate court is the sole judge of the necessity of administration. 7 Ark. 48; 46 Id. 373; 23 Id. 78. No scheme nor device was proven. A proper assignment was alleged and proven, and that the administrator was the owner and holder of the mortgage and notes.

2. Almost the entire testimony for appellants was inadmissible. Kirby's Digest, § 3093; 83 Ark. 210; 80 Id. 277; 79 Id. 69; 13 Enc. of Ev. 400. No usury was shown by any competent evidence.

3. The decree is correct on the merits. No fraud was shown and no usury proven. The appellants' rights are protected by the decree and it is amply supported by the testimony. His findings are, at least, not against the preponderance of the competent testimony.

OPINION

MCCULLOCH, C. J.

This is an action instituted in the chancery court of Conway County by G. L. Cunningham, Jr., as administrator of the estate of G. L. Cunningham, deceased, against the defendants, J. B. Chambers and others, to foreclose a mortgage on real estate. The mortgage was executed on March 3, 1911, by J. B. Chambers and his wife, to G. L. Cunningham, Jr., (individually) and his mother, M. J. Cunningham, to secure a debt of $ 2,738.90 evidenced by five promissory notes, each for the sum of $ 547.78, bearing interest at the rate of 6 per cent per annum from date until paid. Subsequent to that date letters of administration on the estate of G. L. Cunningham, Sr., were issued to G. L. Cunningham, Jr., and said notes were by the payees transferred to said administrator.

M. J. Cunningham and G. L. Cunningham, Jr., are respectively the widow and only heir of G. L. Cunningham, deceased, and it is undisputed that said notes were executed to them by J. B. Chambers in renewal of certain notes which Chambers had previously executed to the senior Cunningham. There had been no administration on the estate of said decedent at the time of the execution of said notes, but, as before stated, letters of administration were issued to the plaintiff subsequent to that date and prior to the commencement of this suit. The evidence shows that there was no indebtedness of the estate of Cunningham, deceased, except a small amount of household expenses which had been paid.

The defendants challenge the authority of the administrator to sue on the notes, but the principal defense offered is that the original debt to Cunningham, Senior, was usurious, and that these notes, being executed in renewal thereof, are likewise void on account of usury. It is alleged in the answer, and the testimony of J. B. Chambers tends to prove, that the original indebtedness to G. L. Cunningham, Sr., was evidenced by notes bearing 10 per cent. interest from date until paid, and that in addition thereto there was no oral agreement between the parties that the maker of the notes was to pay interest at the rate of 25 per cent. per annum. The testimony of Chambers, if accepted as true, also shows that the notes were in fact paid. He testified that he began dealing with G. L. Cunningham, Sr., in the early part of the year 1901, and executed two notes, payable in the fall, one of which was for $ 50 and the other for $ 682.89; also that he executed a new note on January 14, 1902, for $ 876.65, and another note on March 17, 1904, for $ 767.70, and another on January 17, 1905, for $ 587.36. He claims that the last two notes were executed for accumulated usurious interest, and that he had paid, from time to time, more than enough to satisfy the original debt and lawful interest.

It appears from the testimony that some time prior to the year 1911 G. L. Cunningham, Sr., died, leaving his widow and the plaintiff as his sole heir at law. The plaintiff is a young man and knew nothing at all about the affairs of his father, but in going through the papers found the notes executed by defendant Chambers, aggregating, with accumulated interest, the amount of the notes in suit. The old notes were secured by a mortgage on land and on a gin outfit. He testified that he conferred with Chambers several times about the payment of the debt, and that Chambers asked for time and promised to make payments in the following fall but failed to do so. Another creditor of Chambers sued out an attachment and levied it on the gin property, and, according to the testimony of plaintiff, this circumstance was reported to him by Chambers who stated that the property belonged to the Cunningham estate by reason of the mortgage, and that it was their duty to protect it. In February, 1911, Chambers executed to young Cunningham and his mother a bill of sale for the gin outfit at an estimated price of $ 1,500, to be credited on the old indebtedness, but on March 3, 1911, the gin property was reconveyed by Mrs. Cunningham...