Harvey v. National Life Ins. Co.
| Decision Date | 17 May 1888 |
| Citation | 14 A. 7,60 Vt. 209 |
| Parties | DANIEL HARVEY v. NATIONAL LIFE INSURANCE CO |
| Court | Vermont Supreme Court |
GENERAL TERM, OCTOBER, 1887
ACTION to recover usury. Heard on a referee's report, Chittenden County Court, September Term, 1886, TAFT, J., presiding. Judgment pro forma for the plaintiff to recover $ 232.87. Exceptions by the defendant.
The judgment of the County Court is reversed and judgment rendered for the plaintiff to recover $ 207.67 with interest since September 21, 1886, with his costs, except in this court, lessened by the defendant's cost in this court.
Pitkin & Huse, for the defendant.
The parties do not disagree in regard to what is the established law of this State touching the right of the plaintiff to recover, but do disagree in regard to its application to the facts found by the referee. If from what transpired February 14, 1873, the $ 100 usury entered into the plaintiff's note of that date for $ 1000, and its payment was secured by the mortgage then executed, it is conceded by the defendant, that the plaintiff's right to recover it back did not accrue until the note was paid May 29, 1879, in which case, the Statute of Limitations had not run on his claim. But if the $ 100 usury was paid to the defendant February 14, 1873, the plaintiff's right of action to recover it back then accrued, and was barred by the Statute of Limitations when this action was commenced. The finding of the referee is: "Upon the receipt of the mortgage and note the defendant counted out to the plaintiff one thousand dollars, and then took from said sum, one hundred dollars, being the usury agreed upon by the parties." This falls short of finding that the $ 100 was delivered to and received by the plaintiff as his own money. As the result of that transaction the plaintiff went away with nine hundred dollars in money--all he had ever received from the defendant as his own money--and the defendant with the plaintiff's note for $ 1000. It is apparent that the counting out to the plaintiff of one thousand dollars, was no more than a device, at most. As between the parties it was not understood, nor intended, as a surrender by the defendant to the plaintiff, of the one hundred dollars and all right and title to it. Hence, the one hundred dollars usury entered into, and became a part of the mortgage note. The payments made by the plaintiff, and by Mrs. Hardaker prior to the time of the taking up of the note, would, in law, be applied towards the payment of the legal portion of the note. The plaintiff remained holden upon the note until it was taken up. He sold...
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