Goodwin v. Bishop

• Decision Date: 09 May 1893
• Citation: 34 N.E. 47,145 Ill. 421
• Parties: GOODWIN et al. v. BISHOP et al.
• Court: Illinois Supreme Court

145 Ill. 421

34 N.E. 47

GOODWIN et al.

v.BISHOP et al.¹

Supreme Court of Illinois.

May 9, 1893.

Appeal from appellate court, first district.

Bill by H. E. Lowe and E. F. Bayley against Caleb Goodwin and Elizabeth Goodwin to foreclose a trust deed. By amendment to the bill, Alexander Bishop was made party complainant. There was a decree of foreclosure, which was affirmed by the appellate court. Defendants appeal. Affirmed.

Lyman M. Paine, for appellants.

Marston, Augur & Tuttle, for appellees.

CRAIG, J.

This was a bill in equity, brought by H. E. Lowe, trustee, and E. F. Bayley, successor, to foreclose a certain trust deed executed by Caleb Goodwin and Elizabeth Goodwin to secure seven promissory notes, made payable to themselves, and indorsed to Alexander Bishop,-one note for $5,000, due in three years after date, and six interest notes for $175 each. The note of $5,000 was given for a loan of that amount of money loaned by Bishop to Goodwin, and the defense attempted to be set up in the answer was that the transaction was usurious. The answer, setting up usury, is as follows: ‘And these respondents say that they did not, nor did either of them, receive the full sum of $5,000 from said complainants at the time of making said loan, nor at any time, nor did they receive any money at the date of said notes and trust deed, and so these respondents say that the amount claimed by said complainants is largely tainted with usury.’ If a party to a bill in equity desires to set up and rely upon the defense of usury, he must allege the facts showing wherein the usury consists. A general charge of usury in an answer is not sufficient. Mosier v. Norton, 83 Ill. 519. The allegation of the answer may be true, and it by no means follows that the contract between the parties was usurious. The gist of the answer is that the defendants did not secure the full sum of $5,000, nor did they secure any money at the date of the notes. Suppose, however, the next day after the notes were executed, they secured $4,999, and allowed the mortgagee to retain $1 to pay for recording the mortgage, this would be in harmony with the facts disclosed in the answer, and yet usury could not be established in such a state of facts. Where the defense of usury is relied upon, the facts constituting the usury should, as a general rule, be clearly set up in the answer, and proved as alleged.

But it is said, if the answer was insufficient, the complainant ought to have filed exceptions. It is a rule of chancery practice, where an answer is defective, it must be excepted to; a demurrer is not allowable. Stone v. Moore, 26 Ill. 165. But, where the anwer is not under oath, exceptions will not lie, because such answer is not evidence for the party making it. Supervisors of Fulton Co. v. Mississippi & W. R. Co., 21 Ill. 366;Brown v. Mortgage Co., 110 Ill. 238.

But, even if the answer was sufficient, we do not think that the evidence established usury. Bishop loaned Goodwin $5,000, for three years, at 7 per cent. interest. Lowe testified that the money was disposed of as follows: ‘Out of this loan Mr. Goodwin received $110.65 in cash. I paid Mr. Ward $4,640.41 on May 8, 1889, to take up his mortgage on this property. I paid the taxes,-$73.94. I paid Bayley & Waldo $50, for examination of title, etc., by the direction of Mr. Goodwin, and Mr. Goodwin paid me a commission of $125.’ These items make up...