Grider v. Calfee

• Decision Date: 30 October 1941
• Docket Number: 4 Div. 185.
• Citation: 242 Ala. 50,4 So.2d 474
• Parties: GRIDER v. CALFEE et al.
• Court: Alabama Supreme Court

4 So.2d 474

242 Ala. 50

GRIDER v. CALFEE et al.

4 Div. 185.

Supreme Court of Alabama

October 30, 1941

Rehearing Denied Nov. 21, 1941.

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

E. C. Orme, of Troy, for appellant.

John C. Walters, of Troy, for appellees.

LIVINGSTON Justice.

Mrs Sallie Calfee and L. (Lawrence) C. Calfee filed this bill in the Circuit Court of Pike County, Alabama, in equity, seeking to restrain the respondent, G. B. Grider, from selling, under the power in a mortgage, certain real estate alleged to be the individual property of the complainant, Mrs. Sallie Calfee, and which was being advertised for sale under said power at the time the bill was filed. The bill prays for an accounting as to the separate debts due by complainants to the respondent, "and that if they owe the respondent anything that they be allowed to pay him," and for general relief.

The bill alleges, perhaps imperfectly, that the respondent has charged usurious interest on complainants' accounts, the payment of which is secured by the mortgage. Respondent did not test the bill by demurrer, but filed an answer which he made a cross-bill, and in which he prayed that the court ascertain the amount, including a reasonable attorney's fee, due respondent, and for a foreclosure of the mortgage together with a sale of the real estate to satisfy that amount, if the same was not paid within a reasonable time.

The case was submitted on evidence taken by depositions.

The mortgage here involved was executed by Mrs. Sallie Calfee on April 3, 1936, and was due and payable on September 21, 1936. It recites that it was given to secure the payment of the sum of $900, "together with any other amounts we may owe G B. Grider before the full payment of this note and mortgage in money or otherwise." On February 22, 1937, L. C. Calfee and Mrs. Sallie Calfee executed and delivered to respondent a mortgage somewhat similar to the mortgage of April 3, 1936, which recites that it was given to secure the payment of the sum of $1,000 on September 24, 1937. On March 11, 1938, Mrs. Sallie Calfee executed and delivered to respondent another mortgage similar to the one dated February 22, 1937, which recites that it was given to secure the payment of the sum of $1,000 on September 20, 1938.

Although the mortgage of 1936 recites an indebtedness of $900, and the mortgages of 1937 and 1938 recite an indebtedness of $1,000 each, we feel no hesitancy in holding, from the evidence in this case, that these mortgages were given to secure the payment of advances made for the purpose of farming operations, and that the amount secured was the amount actually advanced, rather than the amount recited in the several mortgages, and the mortgages were cumulative in respect to one continuous transaction. All of the mortgages purported to convey all of complainants' crops and other personal property in addition to the real estate of Mrs. Sallie Calfee described therein.

It is not disputed that complainant L. (Lawrence) C. Calfee is the son of complainant Mrs. Sallie Calfee, a widow, and lives with his mother on her farm in Pike County, Alabama.

Complainants insist, first, that a part of the items charged to the account of Mrs. Sallie Calfee were in fact sold to L. C. Calfee and charged to him, and were at a later date charged to her account, without her knowledge or consent. We will not attempt to set out the evidence. Suffice it to say that a careful examination of the record convinces us that, although some of respondent's ledger sheets bear the name "L. C. Calfee," and some "Mrs. L. C. Calfee," the advances were made to and upon the responsibility of Mrs. Calfee. We are also of the opinion, and hold, that the small advances of cash made to L. C. (Lawrence) Calfee and charged to the account of Mrs. Calfee were advanced to the son and charged to her with her knowledge and consent.

As above indicated, the transactions here involved cover a period of three years 1936, 1937 and 1938. The respondent claims that the entire balance of $638.01 due on the account is the sole responsibility of Mrs. Sallie Calfee.

One of the issues tried in the lower court was that of usury. Section 8567, Code of 1923, Code 1940, Tit. 9, § 65, provides: "Interest on usurious contracts; recovery back of usury.-All contracts for the payment of interest upon the loan or forbearance of goods, money, things in action, or upon any contract whatever, at a higher rate than is prescribed in this chapter, are usurious, and cannot be enforced either at law or in equity, except as to the principal. Nor shall the borrower of money at a usurious rate of interest ever in any case in law or equity be required to pay more than the principal sum borrowed, and if any interest has been paid the same must be deducted from the principal and judgment rendered for the balance only."

The courts will closely scrutinize every suspicious transaction in order to ascertain its real nature. The law is diligent to discern any artifice, device or scheme to cover up usury. In determining whether the contract is tainted with usury, the court will look to the whole transaction. Lewis v Hickman, 200 Ala. 672, 77 So. 46; Dawson v. Burrus, 73 Ala. 111; Uhlfelder v. Carter's Adm'r, 64 Ala. 527. It will consider the surrounding circumstances, the occurrence at the time of the making of the agreement, and the instruments drawn. The...