Crim,v,. Post.

• Citation: 23 S.E. 613,41 W.Va. 397
• Parties: CRIM v . POST.
• Decision Date: 04 December 1895
• Court: Supreme Court of West Virginia

23 S.E. 613

41 W.Va. 397

CRIMv. POST.

Supreme Court of Appeals of West Virginia.

Dec. 4, 1895.

Usury—What Constitutes—Lawful InterestReference—Findings of Fact.

1. Where a party buys a tract of land, paying therefor by the assignment of notes taken to himself for money loaned at a usurious rate of interest, apparent on the face of the notes', afterwards the notes are counted up at the usurious rate, a bonus added, and new notes therefor given by the debtor to the assignee, with a deed of trust to secure their payment, and the new transaction is given the color of being the original sale of the land, rescinded, and the land resold, —held, the transaction is usurious.

2. In this state 6 per cent, is the legal rate of interest, and, although it appear that more than lawful interest was reserved, yet the lender shall recover his principal money with 6 per cent, interest.

3. But the statute contemplates that a I search for usury shall not stop at the mere form of the bargains and contracts relative to such loan, but that all shifts and devices intended to j cover a usurious loan or forbearance shall be j pushed aside, and the transaction be dealt with | as usury if it be such in fact.

4. It is important that the master commissioner to whom causes are referred should furnish the court with findings of facts.

(Syllabus by the Court.)

Appeal from circuit court, Barbour county.

Action by Joseph N. B. Crim against Isaac N. Post. Judgment for plaintiff. Defendant appeals. Reversed.

Dayton & Dayton and F. O. Blue, for appellant.

M. Peck, for appellee.

HOLT, P. On appeal from a decree of the circuit court of Barbour county, entered on the 5th day of June, 1894, decreeing in favor of appellee, Crim, against defendant and appellant, Isaac N. Post, a sale under a deed of trust of the land of Post, he having pleaded usury to the debt secured. In May, 1888, plaintiff, Crim, filed his bill in equity against Isaac N. Post, the trust debtor, M. Peck, trustee, Dever Pickens, executor of James Pickens, deceased, alleging, among other things: j That on the 2d day of August, 1886, defendant Post was indebted to him in the, sum of $1,5S9.83, with interest thereon from the 1st day of August, 1886, and that to secure the | payment thereof Post, by deed of trust of I the same date, conveyed to Peck, trustee, the Thrash tract of land of 138 3/4 acres, on Brushy Fork of Elk creek, in Barbour county, not before conveyed away, and all Post's other land adjoining thereto or in that vicinity; that Post, by deed of trust of 30th August, 1884, had conveyed the tract of 138 3/4 acres to Dever Pickens, trustee, to secure to James Pickens a debt of $2,250; that James Pickens is dead; Dever Pickens is his executor, but that debt has long since been paid; that bis own debt remains wholly unpaid; that there may be other liens; that Post, since the issuing the summons, by deed dated March 17, 1888, recorded May 5, 1888, sold and conveyed 121 3/4 acres jointly to John J. House and Ruhama Johnson, with intent to delay, hinder, and defraud plaintiff and other creditors; that plaintiff does not know the quantity or boundaries of lands included in his trust deed; and that M. Peck, trustee, had become interested by assignment in a portion of plaintiff's trust debt; and that the trustee regards it as improper for him to act otherwise than under the direction of the court. Therefore he prays that defendant Post may answer what lands he owned on 2d August, 1886; that, if he cannot do so, it may be ascertained by survey; that the liens on said land may be ascertained, together with their amounts and priorities; that the land may be sold, and the proceeds ap plied under the direction of the court; and for general relief. Defendant Post answered, admitting the trust deed, etc., but alleging that it was part and parcel of a long-continued transaction between dim and himself, beginning years before the execution of the trust deed, in which transaction Crim exacted and defendant Post paid large sums of usury, for which he has not received, but is entitled to, credit on the principal at the times of their payment; that he has continuously paid Crim large sums of usurious interest, and that, when the trust is properly credited with the payments made and the usurious interest paid, the trust debt will be found to be paid off, and, likely, overpaid; that he is unable to itemize the usurious payments, but prays that Crim may discover the same, that the facts may be ascertained by a commissioner in chancery, etc. By six distinct orders of reference the cause was referred to three different commissioners to ascertain and report upon these matters. Three several reports were made and filed; the last, and only one here involved, by Master Commissioner Kittle, to which both parties excepted. On this report and exceptions and papers theretofore read and orders entered the cause came on to be finally heard on the 5th day of June, 1894, whereupon the court pronounced the decree complained of giving a personal decree against Post in favor of Crim for $1,770.36, with interest from 2d August, 1886, as the amount due on the deed of trust, and appointed a commissioner, who, in case of nonpayment within the time given, was directed to sell for cash enough to pay costs and expenses of sale, and for the balance on a credit of 6, 12, and 18 months, and Post appealed. In this state interest beyond 6 per cent, is usurious.

The important facts in dispute take place in the inception of this long transaction, which the commissioner, with the parties and some 12 witnesses, on oral examination before him, has patiently.endeavored to unravel. It begins with two notes executed by defendant Post. On the 22d day of January, 1877, defendant Post borrowed of B. F, Stout $940, and gave his single bill thereof of that date, payable one day after date, with interest at the rate of 10 per cent. This note, with that rate of interest, amounted on the 20th day of March, 1879, to $1,143.14. On the 7th day of December, 1877, Post executed to Stout another single bill—this one for $1,500—of that date, due 12 months thereafter, calling for interest from date at the rate of 12 per cent. This note, at that rate of interest, amounted on the 20th day of March, 1879, to $1,731.50, and both of them to the sum of $2,874.64, or, as Crim and Stout counted them up, to $2,874.70 odd cents. Plaintiff, Crim, was the owner of a tract of land of 123% acres, called the "Board Place, " which in the way of debts he had bought for $3,000, and was trying to sell at that price to Stout. Stout says that it was not worth more than $2,500 or $2,600in cash; that ho would not have given more if he had had the money. On the 20th day of March, 1879, Stout bought of Crim the Board place at the price of $2,800 as of the 4th day of January, 1879, by transferring to said Crim notes to that amount on Isaac N. Post, which amount was paid by transferring to Crim the said Post notes, and they both executed and signed an article of agreement of that tenor and effect, and left it with Enoch Miller to hold for them. Stout allowed Crim, as interest on the Board land from January 4, 1879, to March 20, 1879, about $37.50, and Crim executed to Stout a duebill for about $37.30 odd cents, the balance of the Post notes. Post knew that Stout was buying the land, and paying for it with these notes, and wanted time; and' in the verbal agreement which led to the written contract Crim agreed to give Post a "good, long time" in which to pay; say five years. Very soon after this, Crim sent word to Post that he had his notes, and Post went up to see him. Crim told him that he had taken the notes from Stout as cash, that they were due, and he expected him to pay the money. Post complained of Stout. Said he could not pay them without making a sacrifice. Then Stout went to see Crim. Said he was anxious to have the matter put in such shape as would give him his clear deed, give Post time, and fully secure Crim his debt. Crim desired Stout to take back the Post notes, pay $500, and $500 a year to run for five years; but Stout refused, insisting on his contract for a "clear deed." On the 27th day of June, 1879, the parties came to an agreement which was carried out. Stout...