Elba Bank & Trust Co. v. Davis

• Decision Date: 27 November 1924
• Docket Number: 4 Div. 166
• Citation: 212 Ala. 176,102 So. 117
• Parties: ELBA BANK & TRUST CO. v. DAVIS et al.
• Court: Alabama Supreme Court

102 So. 117

212 Ala. 176

ELBA BANK & TRUST CO. v. DAVIS et al.

4 Div. 166

Supreme Court of Alabama

November 27, 1924

Appeal from Circuit Court, Coffee County; W.L. Parks, Judge.

Bill in equity by Jane E. Davis and G.E. Davis against the Elba Bank & Trust Company and the First National Bank of Elba. From a decree overruling demurrer to the bill, respondent Elba Bank & Trust Company appeals. Affirmed.

W.W Sanders, of Elba, for appellant.

P.B Traweek, of Elba, for appellees.

ANDERSON C.J.

The bill is filed by Jane E. Davis and her husband to cancel a certain deed made by them, or to have the same declared a mortgage, and to redeem, and also seeks discovery and an accounting. The bill shows that these complainants were joint vendors and mortgagors throughout and that they have a joint and common interest in canceling or adjusting their joint obligation, notwithstanding the wife may own the land and the husband the personal property embraced in the conveyances. Each have a joint interest in all the credits that should go to the mortgage indebtedness made by either of them, or arising from a sale or conversion by respondent of the mortgaged property, and it matters not as to the ultimate result or status of ownership between them, and they are jointly liable upon the mortgages prima facie, though the wife claims nonliability because of being surety for her husband. They ask for an accounting and redemption in the alternative, and this does not render the bill multifarious. Section 3095 of the Code of 1907; Forcheimer v Foster, 192 Ala. 218, 68 So. 879, and cases there cited.

To constitute the offense of usury, there must be an intent to do something which is in violation of the statute. In accordance with the weight of authority, it is sufficient if this unlawful intent is entertained by the lender alone against whom the usury acts are aimed, and the fact that the borrower does not know that he is contracting for or paying usurious interest is immaterial. But in some jurisdictions it is said that usury is predicated upon a contract, and cannot exist unless the unlawful intent is shared by both lender and borrower; that is, the excessive payment must have been made and received in accordance with the terms of a mutual agreement. 39 Cyc. 920. It seems that the averments of the bill of complaint, that the respondents knowingly and intentionally included a greater rate of interest in the notes and...