Fowler v. Equitable Trust Co

• Decision Date: 26 October 1891
• Citation: 12 S.Ct. 8,35 L.Ed. 794,141 U.S. 411
• Parties: FOWLER et al. v. EQUITABLE TRUST CO
• Court: U.S. Supreme Court

141 U.S. 411

12 S.Ct. 8

35 L.Ed. 794

FOWLER et al. v. EQUITABLE TRUST CO.

October 26, 1891.

The trust company, upon the written application of Sophie Fowler, a citizen of Illinois, agreed to lend her the sum of $10,000 for five years, at 9 per cent. per annum. She and her husband executed to the company, for the principal of the loan, 10 coupon bonds, of $1,000 each, dated February 1, 1876, and payable on the 1st day of February, 1881, with interest, semi-annually, at the rate of 7 per cent. per annum.

They executed at the same time 10 promissory notes, of $100 each, for the remaining 2 per cent., the first one being payable August 1, 1876, and the others, respectively, on the 1st days of February and August, 1877, to 1881, inclusive. To secure payment of the bonds, they conveyed to Jonathan Edwards, trustee, certain real estate in Spring-field, and, to secure the 10 promissory notes of $100 each, they conveyed the same property to the same trustee, subject, however, to the other trust-deed. These deeds do not differ in any respect material to this case from the deeds in the preceding cases, (12 Sup. Ct. Rep. 1,7,) except that the deed given to secure the bonds here involved, aggregating $10,000, provides that nothing contained in it shall be so construed 'as to prevent a foreclosure of the same by process of the law or in chancery,' and that the trustee, or his successor or successors, shall, 'upon any foreclosure of this trust-deed, recover, in addition to principal, interest, and ordinary costs, a reasonable attorney's or solicitor's fee, not exceeding five per cent. for the collection thereof, all to be collected without relief from valuation or appraisement laws. And in case of any such foreclosure it is hereby stipulated that the decree or order for foreclosure shall direct and require that the expenses of such foreclosure and sale, including the fees of solicitor and counsel, to be taxed by the court at a reasonable amount, shall be paid out of the proceeds of the sale,' etc. This suit was brought to foreclose the defendant's equity of redemption, and to have the mortgaged property sold to pay the amount due the company. The answer in the case raised the same questions that are presented in the four preceding cases. 12 Sup. Ct. Rep. 1, 7.

By a decree entered October 20, 1884, the court adjudged that the company recover $5,125.42 as the balance of the principal sum actually received by the defendants, $614.72 for insurance and taxes paid by it, with interest thereon, and $287 as solicitor's fee; in all, $6,027.14. When this decree was entered the plaintiff filed a written motion and petition for rehearing, in respect to which the same proceedings were had as in the preceding cases, and like motions and petitions for rehearing were filed. A rehearing having been granted, the order for which was entered as of October 31, 1884, a final decree was entered January 11, 1887, adjudging that there was due the plaintiff for the principal and interest of the loan $15,296.60, $3,173.26 for insurance, taxes, and special assessments paid by it, and a reasonable attorney's fee, which was fixed at $923.49; in all, $19,393.35, and costs. From that decree the defendants have appealed.

R. G. Ingersoll and Wm. Ritchie, for appellants.

W. L. Gross, for appellee.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

For the reasons given in the opinion in Nos. 32 and 33, (12 Sup. Ct. Rep. 1,) the question of usury raised must be determined by the law of Illinois. But what was there said in reference to usury, commissions paid to the company's agent by the borrower, and the application to the principal sum of payments made, has no application to this case. This was a loan of $10,000 for five years at 9 per cent. The borrower received the whole amount agreed to be loaned to her. There was not even a reservation of interest in advance. She only gave notes for 2 per cent. of...