Chicago Lumber Company v. Bancroft

• Decision Date: 19 March 1902
• Docket Number: 10,928
• Parties: CHICAGO LUMBER COMPANY, APPELLEE, v. FLORENCE M. BANCROFT ET AL. APPELLEES, IMPLEADED WITH LEXINGTON BANK, APPELLANT
• Court: Nebraska Supreme Court

89 N.W. 780

64 Neb. 176

CHICAGO LUMBER COMPANY, APPELLEE, v. FLORENCE M. BANCROFT ET AL. APPELLEES, IMPLEADED WITH LEXINGTON BANK, APPELLANT

No. 10, 928

Supreme Court of Nebraska

March 19, 1902

APPEAL from the district court for Dawson county. Heard below before SULLIVAN, J. Affirmed.

AFFIRMED.

Henry D. Rhea, for appellant.

E. A Cook and Warrington & Stewart, contra.

HOLCOMB J. SULLIVAN, C. J. concurring. SEDGWICK, J. dissenting.

OPINION

HOLCOMB, J.

A plaintiff instituted a suit to foreclose a mechanic's lien on real estate, making the appellant, the Lexington Bank, and appellees Bancroft parties defendant in the action. Defendants Bancroft were the fee owners of the property involved in the suit, and defendant bank claimed a lien thereon by virtue of a mortgage in its favor executed by the Bancrofts. The bank appeared in the action, and, by way of cross-petition, pleaded that the Bancrofts were indebted to it on a promissory note for the sum of $ 1,122, executed by them to the bank, and that said note was secured by a real estate mortgage on the premises described in the petition and prayed a finding of the amount due on the note and mortgage, and that the same might be adjudged a valid lien on said premises, and that the real estate be sold in satisfaction of the amount due, if the same were not paid at a short date, to be fixed by the court. To this cross-petition of the bank the Bancrofts filed an answer, in which the giving of the note and mortgage was admitted, and, as a defense, it was pleaded that the contract evidenced thereby was usurious, in that by the agreement of the parties thereto a greater rate of interest was charged for the loan and forbearance of money than the rate of $ 10 per annum on the hundred dollars, the answer setting forth in detail the particulars of the transaction and the different items entering into the consideration of the note, and the amount of unlawful interest included therein. It was also pleaded that, after the maturity of the note and mortgage mentioned in the cross-petition, a new contract was entered into between the parties for a further extension of the indebtedness, and that said contract was likewise usurious; the answer stating in detail the facts constituting the alleged usury. Further renewal contracts were also pleaded, each of which, it was alleged, was usurious, and that at the time of filing the cross-petition the defendant bank held two notes of defendants Bancroft, other than the one declared on, as evidencing the usurious contract so pleaded, one being for the sum of $ 1,400 and the other for the sum of $ 200, giving the dates and maturity thereof. The answer prayed for an accounting, and the ascertainment of the amount actually due the bank, after allowing credits and payments claimed to exist in favor of the mortgagors, and for general equitable relief. There were other issues tendered by the answer, as to certain collaterals alleged to have been given to secure the debt, for the proceeds and value of which the Bancrofts claimed they were entitled to credit; but, as all such matters are eliminated from the questions presented for our consideration by this appeal, we need not further notice them. A reply was filed, denying the usury alleged in each and all of the transactions mentioned in the answer; the reply stating in detail the items entering into each of the notes executed by the Bancrofts, and the amount of interest charged in each, which, it was alleged, did not exceed ten per cent. per annum, and on the issues thus framed the parties went to trial. A referee was appointed to take the testimony and report to the court the evidence, with its findings of fact, and conclusions of law. We will only notice such portion of the report of the referee and the action of the trial court thereon on exceptions by the defendants Bancroft as seems necessary to an intelligent understanding of the points involved in the consideration of the case on appeal. We are not favored with a brief on the part of the appellees Bancroft, and are compelled to decide the controversy upon the record and a brief by appellant's counsel, with such independent research as we have had time for at our command.

The referee made several findings of fact, those material to the question now under consideration being as follows:

"6. I find that neither upon the note for $ 1,122 made by the defendants Bancroft, to the defendant, Lexington Bank, and by them delivered to it, which note is set forth in the defendant Lexington Bank's cross-petition and answer, nor upon any of the notes of which it is a renewal nor upon any of the items which are included in said note of which it is a renewal was there contracted for, received or reserved a rate of interest exceeding ten per cent. per annum, said note being the one secured by the mortgage set out in said cross-petition.

"7. I find that no part of said $ 1,122 note has been paid, and there is now due thereon the sum of $ 1,865.88 according to the terms thereof.

"8. I find that on the 12th day of April, 1893, a new note for the sum of $ 1,299 was made and delivered by the defendants Florence M. Bancroft and William M. Bancroft, to the defendant Lexington Bank, as a renewal of the said $ 1,122 note, and for the purpose of keeping the obligation created by said $ 1,122 note in bankable shape, the said $ 1,122 note being retained by the defendant bank, and marked "collateral" as shown by indorsement thereon, and said mortgage was also retained by said bank; that from time to time after the making and delivery of said renewal other renewals were made and delivered by the defendants, Florence M. Bancroft and William M. Bancroft, to the defendant Lexington Bank, for the same purpose, said $ 1,222 note and said mortgage still being retained by said bank.

"9. I find that in these renewals and on them a greater rate of interest than ten per cent. per annum was contracted for, by and between the parties and by the defendant bank, and by it charged and included in said notes.

"10. I find that all of these renewals have been canceled and surrendered by the defendant bank to the defendants Bancroft, excepting the last two given, one of which two is for the sum of $ 1,400 dated January 14, 1895, and signed by Florence M. Bancroft, and William Bancroft, and the other is for the sum of $ 200 dated January 9, 1897, and made by William M. Bancroft, into which two notes all of the other renewals were merged; and the said $ 200 note is the one in these findings mentioned in which said taxes and said interest found to have been paid by William M. Bancroft were included, together with other items of indebtedness of said William M. Bancroft to said bank."

As a conclusion of law the referee found that the bank had a valid lien on the premises mortgaged for the amount found due by the seventh finding of fact, and was entitled to a decree of foreclosure as prayed, and a sale of the premises in satisfaction of the amount found due. On objections and exceptions by the defendants Bancroft, the trial court set aside the seventh finding of fact, and approved and confirmed the remainder. The court construed the referee's ninth finding to be and mean that at the time the indebtedness was renewed, April 12, 1893, a new and original contract was entered into, and the note and mortgage sued on were, by agreement of the parties, retained as collateral security to the contract then entered into, and so found, in effect, that such contract was tainted with the vice of usury, as was found by the referee, and that the amount then due on the indebtedness was the sum of $ 1,238.13, to which sum the cross-petitioner was limited in its recovery, by reason of the usurious character of the contract, less credits which should be applied thereon, and regarding which there is no controversy, and entered a decree of foreclosure accordingly. The bank appeals.

It is argued in substance that, the note sued on being free from the vice of usury, and retained by the payee, the renewal contract did not discharge the indebtedness evidenced thereby; and that the agreement to take usury, even though made, could not affect such note and mortgage, and that the bank was entitled to recover the full amount due thereon, including interest, according to its terms; that the contracts of renewal can only be regarded in their character as collateral to the principal indebtedness, which is unaffected by any subsequent usurious agreement. It is also contended that the evidence will not support the finding of the referee that usury was contracted for in all or either of the renewal notes given after the maturity of the note for $ 1,122, which was made the foundation of the bank's cause of action, as stated in its cross-petition. As the bank did not challenge the findings of the referee, which were, with the exception noted, confirmed by the court, we think it is now bound by such findings, and can not be heard to dispute their truthfulness, or escape the legal consequences flowing therefrom.

This therefore, leaves but one question to be determined, and that is, what is the legal effect with respect to the rights of the contesting parties, because of the contract of renewal entered into...