Crebbin v. Deloney

• Decision Date: 14 June 1902
• Citation: 69 S.W. 312,70 Ark. 493
• Parties: CREBBIN v. DELONEY
• Court: Arkansas Supreme Court

69 S.W. 312

70 Ark. 493

CREBBIN v. DELONEY

Supreme Court of Arkansas

June 14, 1902

Appeal from Howard Circuit Court in Chancery, WILL P. FEAZEL, Judge.

Reversed in part.

STATEMENT BY THE COURT.

This is an action commenced in the Howard circuit court, founded upon a promissory note or bond executed and delivered by the appellee, Alchymy Deloney, and his wife to the Jarvis-Conklin Mortgage Trust Company on the 1st day of January, 1888, for $ 2,350, bearing interest at the rate of 7 per centum per annum, payable semi-annually until due, and 10 per centum after maturity until paid. To secure the payment of this principal note, the appellees, Deloney and wife, executed and delivered to Samuel M. Jarvis, trustee of the Jarvis-Conklin Mortgage Trust Company, their certain deed of trust wherein they conveyed the west half of the southeast quarter and the southwest quarter of section 15 and the northeast quarter of the Southeast quarter of section 16, all in township 11 south, range 27 west, in Howard county, Arkansas, which deed of trust was conditioned for the faithful performance of the contract evidenced by the principal note and interest coupons evidencing the interest payable on the principal note or bond. Default having been made in these payments, and the note and coupons sued on being past due and payable foreclosure was sought as authorized by the terms of this deed of trust, as well as a personal judgment for the amount due and unpaid.

The note thus secured having been assigned to the appellant, the action was brought in his name.

The defendants answered, admitting the execution of the note and mortgage sued on, and alleged that both are void on account of usury, stating in detail the facts and circumstances relied on to sustain this plea. They also pleaded the laws of Missouri pertaining to usury, and set up the defense under these laws, and prayed that the note and deed of trust be declared void.

The appellant also brought a contemporaneous action at law to obtain possession of the rents and profits of the land in controversy, and, by consent of parties, the two actions were heard together without the intervention of a jury.

The court, in the law case, found that there was due and unpaid on the note and mortgage in controversy the sum of $ 2,578.26, and that there had been default in the payment of the note and interest, and gave judgment for appellant for the possession of the land.

In the equity case the court decreed in favor of the plaintiff for the sum of $ 2,578.26, and directed that all of this sum, in excess of $ 1,997.80, which the court found to be the interest remaining unpaid on the amount loaned the appellee be set apart for the use of Howard county, Arkansas, for the benefit of the common school fund of said county, and that plaintiff pay the cost of the action. From this decree both parties appealed. From the judgment of possession in the law case, the defendant appealed.

Decree affirmed and cause remanded.

W. C Rodgers, for appellant.

Plaintiff could sue in ejectment and foreclose in equity at same time. 7 Ark. 310; 13 Ark. 533; 55 Ala. 607; 2 Vest. Sr. 675; 12 S. & R. (Pa.) 240; 2 Ark. 343; 10 Johns, 481; 23 Ill. 30; 18 Ark. 546. The contract must be governed by the laws of Missouri. 14 Ark. 603; 33 Ark. 645; 35 Ark. 52; 36 Ark. 569; 44 Ark. 230; 47 Ark. 54; 60 Ark. 269; 64 Ark. 30; 66 Ark. 77; 67 Ark. 252; 1 Cowp. 341; 23 So. Rep. 12; 50 S.C. 303; 19 Nev. 121; 53 F. 474. As there was a stipulation in the agreement as to which law should govern, the question is settled thereby. 64 Ark. 39; 14 S.W. 1024; 87 Ga. 113; 1 Wall. 298; 96 U.S. 51. The rule as to transitory actions: 88 Va. 971; 68 Vt. 727; 145 U.S. 593; 126 N.Y. 10; 16 R. I. 388; 83 Ky. 174; 113 Ind. 169. The rule that a state cannot enforce the criminal penalties of another applies to civil suits for penalties. 98 U.S. 555; 6 Wall. 7; 66 Me. 212; 87 N.Y. 430; 98 Pa.St. 65; 20 W.Va. 450; Rorer, Interstate Law 206; 33 Md. 487; 7 Met. (Mass.) 14; 12 Allen, 438; 95 Ia 740; 67 Vt. 76; 101 U.S. 188; 3 Dutch. (N. Y.) 166; 8 Ohio St. 215; 33 Md. 487; 23 Cal. 472; 58 Hun. 112; 143 Mass. 301; 37 Wis. 323; 127 U.S. 265. The rule is universally enforced in civil and criminal cases. 45 Md. 41; 14 Vt. 357; 67 Barb. 91; 9 Ill. 521; 9 R. I. 541; 14 Johns, 338; 1 Robt. 383; 1 N.Y. 537; 10 Wheat. 66, 123; 32 Ark. 117; 1 Yerg. 110; 58 Vt. 727; 3 T. R. 726; 6 M. & S. 92; 18 Kan. 46; 72 Ind. 220; 43 Ga. 461; 84 Mo. 679; 10 Ohio St. 121; 25 Conn. 265; 2 Wall. 29. The legislature intends that its statutes shall not apply beyond the limits of the state. 45 Md. 41; 14 Vt. 357; 18 Kan. 46; 98 N.Y. 377; 14 Johns, 338. Penal statutes must be strictly construed. 56 Ark. 45; 59 Ark. 544; 56 Ark. 224; 22 Pick. 385; 106 N.Y. 277; 38 Miss. 185; 101 U.S. 188; 67 Ark. 357; 23 Cal. 472; Endlich, Int. St. § 127; Suth. Stat. Cons. § 400; 85 U.S. 409. The court can only take notice of the laws of a foreign state to the extent proved. 37 Mo.App. 352; 66 Ark. 77; 10 Ark. 169; 121 Cal. 620; 171 Mass. 425; 19 Ind.App. 469; 26 Vt. 689; 2 Mass. 83; 8 Mass. 9; 80 Ind. 186; 4 Conn. 517; 19 Mich. 187; 6 Conn. 480; 37 Fla. 64; 10 Wend. 75; 37 Mo.App. 352; 14 Ark. 603; 10 Ark. 169; 30 Ark. 124; 50 Ark. 237; 36 Ark. 645; 46 Ark. 50; 35 Ark. 52. Forfeitures and penalties are odious in equity. 15 Wall. 146; 97 U.S. 13; 38 Ark. 285; 144 U.S. 384; 58 S.W. 361. The plea must be proved beyond a reasonable doubt. 18 N.J.Eq. 487; 12 Ore. 349. Usury must be clearly shown. 57 Ark. 250; 66 Ark. 77; 56 S.W. 782. Usury must be shown to have been contemplated by both parties. 9 Pet. 397; 116 U.S. 98; 9 Ark. 22; 54 N.J.Eq. 97. Rebates given prevented usury. 54 Ark. 566. Expenses of the loan were not a charge for the use of the money. 57 Ark. 347; 2 T. R. 52; 145 Ill. 412. There was no proof of any agency in Arkansas. 44 Ark. 213; 36 A. 797. Benjamin was nothing more than a broker. 66 Ark. 10; 3 S.W. 1113. A broker's commission is no part of the interest charged by the lender. 51 Ark. 548; 51 Ark. 534; 54 Ark. 573. The evidence fails to disclose an intention to charge usury. 62 Ark. 370; 38 S.W. 1113. There can be no recovery of interest paid under the laws of Arkansas or Missouri. 12 Mo. 18; 55 Mo. 387; 43 Mo.App. 272; 39 Mo. 445; 55 Ark. 318; 32 Neb. 302; 53 Ia. 396; 24 Ill. 381. The defense of usury is personal to the borrower. 7 Ark. 146; 32 Ark. 346; 53 S.C. 115. The defense of usury must be specifically pleaded. 56 Neb. 446; 10 Wheat, 367; 26 Ark. 356; 30 Ark. 135; 85 Ala. 360; 22 Ark. 409; 21 Mo. 432; 55 Ark. 318; 111 Ala. 468. Laches and neglect are discountenanced, and there was always a limitation to suit in this court. 55 Ark. 85; 58 F. 470; 21 F. 574; 2 Wall. 87; 15 Ark. 286; 120 U.S. 378; 8 Utah 350; 145 U.S. 368; 149 U.S. 287; 150 U.S. 193; 158 U.S. 150; 7 How. 234; 143 U.S. 224; 19 Ark. 16; 14 Ark. 62; 124 U.S. 183; 21 Wall. 178; 46 Ark. 25; 68 F. 489; 20 R. I. 202; 1 How. 161; 19 Ark. 16; 117 Cal. 215; 83 F. 794; 70 Vt. 52; 160 U.S. 171; 36 A. 1099; 64 Ark. 345; 76 F. 82. There is no reason given on the part of appellee why suit was not brought sooner. 58 F. 470; 88 U.S. 178; 60 S.W. 229; 143 U.S. 224.

W. S. Eakin and J. W. House & M. House, for appellees.

The law of comity between the states will not authorize Arkansas courts to enforce the penalty prescribed by the laws of Missouri. 79 Md. 191; 127 U.S. 265; 33 Md. 498; 4 Gilm. 521; 22 Ill. 606; 1 N.Y. 537; 87 N.Y. 430; 5 Ohio 217; 1 Yerg. 110. This law cannot be extended so as to violate public policy or positive legislation of a state. 29 Mo.App. 397; 42 Miss. 444; 45 S.C. 344; Busbee's Law, N. C. 314; 9 Sm. & M. 247; 18 La.Ann. 10; 28 N.H. 379; 42 Mo. 474; 3 Jones, Eq. 294; 21 F. 299. The laws of Missouri have no force beyond the limits of that state, and are recognized ex comitate, but not to enforce a penalty or in violation of the settled policy of this state. 28 N.H. 379; 5 J. J. Marshall, 460; 12 Vt. 464; 5 Martin (N. S.), 569. Usurious contracts are void. 5 Ark. 684; 13 Ark. 12; 29 Ark. 386; 47 Ark. 378; 32 Ark. 619; 34 Ark. 762. An illegal contract under the laws of Missouri cannot be enforced here. 3 Ark. 227; 19 Ark. 346; 25 Ark. 209; 25 Ark. 238; 46 Ark. 420; 53 Ark. 147; 63 Ark. 318; 47 Ark. 378; 62 Ark. 254; 64 Ark. 29. A contract usurious where made is so everywhere. 63 Minn. 196; 5 Ind.App. 89; 146 Ill. 523; 124 Md. 178; 19 La. 136-216; 13 Peters, 78; 11 Ind. 117; 6 Ohio St. 19; 1 Wall. 310; 55 Am. St. Rep. 44; 91 Ia. 108; 6 La.Ann. 563; 8 Martin, 95; 49 Md. 336; 125 Mass. 374; 6 Wend. 103. A contract made by correspondence is governed by law of the place where final assent was given to the contract. 69 Mo. 105; 36 N.Y. 307; 15 R. I. 380; 47 F. 867; 51 F. 168. The place of delivery is the place of contract. 5 Allen, 140. The laws of the state in which the property is situated must govern in the construction and validity of the contract. 85 Ind. 414; 11 Gray, 38; 11 Neb. 91; 5 Saw. 32; 1 Biss. 337; 13 Pet. 65; 19 N.E. 25; 38 Barb. 352; 27 Am. & Eng. Enc. Law, 974. A contract, illegal under both jurisdictions, cannot be enforced in either. 42 Miss. 444; 66 Me. 212; 11 Pick. 36; 2 Metc. 8; 7 Metc. 14-16. Plea of usury may be interposed as long as there is a demand outstanding not barred by limitations. 32 Ark. 346; 39 Am. Rep. 474.

OPINION

HUGHES, J., (after stating the facts.)

The appellant contends that this is a Missouri contract, and the appellee that it is an Arkansas contract. The court is of the opinion that it is a Missouri contract, because it is dated and payable at Kansas City, Missouri, and must be governed by the laws of Missouri. The court is of the opinion also that the evidence is sufficient to sustain the decree that the contract is usurious under the laws of Missouri upon the subject of usury, and...