Hawhe v. Snydaker

• Decision Date: 30 September 1877
• Citation: 1877 WL 9694,86 Ill. 197
• Parties: MARY H. HAWHE et al.v.GODFREY SNYDAKER et al.
• Court: Illinois Supreme Court

86 Ill. 197

1877 WL 9694 (Ill.)

MARY H. HAWHE et al.

v.GODFREY SNYDAKER et al.

Supreme Court of Illinois.

September Term, 1877.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Cook County; the Hon. E. S. WILLIAMS, Judge, presiding.

Mr. J. W. WAUGHOP, for the plaintiffs in error.

Messrs. ROSENTHAL & PENCE, for the defendants in error.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

This is a writ of error brought to reverse a decree rendered in the circuit court of Cook county, in favor of Godfrey Snydaker and Moses Snydaker, foreclosing two deeds of trust, in the nature of mortgages, upon certain lots in Hawhe's South Park Subdivision. The first deed was given to John G. Rogers by Arthur J. Hawhe, to secure the payment of a note by Hawhe, dated June 29, 1871, payable to Samuel Walker, for $6,500, at one year, with eight per cent interest. The second deed was made by Hawhe to Moses Snydaker to secure the payment of Hawhe's note of July 10, 1871, to his own order, for $10,000, at ninety days, with interest at ten per cent per annum. Each of these notes was assigned to the complainants below on the day of its date. Said deeds were duly recorded. The first deed embraced what now constitutes blocks 1 and 6, in that subdivision. The second deed embraced blocks 1, 6, 2, 3, 5, and the west half of block 4.

Block 1 contains forty-eight lots; block 6 contains twenty-four lots; blocks 2 and 3 each contains forty-eight lots; block 5 contains twenty-four lots, and the west half of block 4 contains twenty-four lots.

In other words the first deed was a first lien on the seventy-two lots in blocks 1 and 6, and the second deed was a first lien on the 144 lots contained in blocks 2, 3, and 5, and the east half of block 4, and was a lien upon Hawhe's equity of redemption from the first deed in the seventy-two lots in blocks 1 and 6.

A. J. Hawhe, after the record of these deeds, conveyed divers parts of the property, and the Snydakers caused divers portions of the property to be released from the lien of these deeds.

This writ of error is brought by the representatives of A. J. Hawhe, deceased, and by certain parties who purchased certain of these lots from A. J. Hawhe in his lifetime but subsequent to the recording of these deeds of trust.

The first point made is, that the defense of usury was not allowed in the court below. It is insisted that, by reason of that defense, no interest should have been allowed to complainants.

The 5th section of the statute relating to interest provides, in substance, “that no greater sum than interest at the rate of ten per cent per annum shall be accepted or received by any person;” but no penalty is attached by statute to the violation of this section.

Section 6 of the same statute provides that “if any person * * * shall contract to receive a greater rate of interest * * * than ten per cent upon any contract, such person * * * shall forfeit the whole of the interest so contracted to be received, and shall be entitled only to recover the principal sum due.”

Section 7 provides that “the defense of usury shall not be allowed unless set up by plea, or by notice in writing stating that he intends to defend * * * on the ground that the contract is usurious.”

The answer in this case alleges “that there has been paid to complainants large sums of usurious interest, and that complainants have taken and exacted usurious rates of interest of the said Arthur J. Hawhe, and they are now, by the statute of this State, not entitled to recover of these defendants any interest at all; and these defendants invoke and set up the statute of usury of the State of Illinois, and claim the application and benefit thereof in this case, and that all manner of lawful deductions to which they are entitled, and that they may prove, may be allowed as credit on said notes, to protect them from the claims and demands of complainants.”

The representatives of Hawhe, deceased, claim, under the the proofs, that complainants should have been held to have forfeited all right to recover interest on these notes. This position can not be sustained. Without referring to the strictness in detail which, under such statutes, the courts have required of the party setting up such defense and claiming the benefit of such forfeitures, it is sufficient to say that this answer does not, in substance, in the most general way lay any foundation whatever for the forfeiture of all interest. That forfeiture, by the statute, is applied only to the case where there is a “contract to receive” more than ten per cent, and the forfeiture is of “the whole of the interest so contracted to be received.”

This answer does not allege that in the making of these notes there was any agreement or contract for more than ten per cent; nor, in fact, does the answer set up, in any form, the making of any contract for more than ten per cent interest by any parties.

Unless there is an allegation in the pleading, or notice in writing, stating in substance, in some form, that there has been a contract made to receive more than ten per cent, the statute provides for no forfeiture. It is true that courts will give force and effect to the 5th section of this statute without a specific plea of usury, where their attention is called to such a defense, in a case where the payment of unlawful interest has been exacted. This is done, in such case, by applying as a credit upon the notes so much of the money so exacted as exceeds the lawful interest.

In this case complaint is not made that the sums actually paid were not properly applied by the court in reducing the amount of the indebtedness. The complaint is that the court refused to declare that complainants had forfeited all interest upon these notes. This complaint can not be sustained under the pleadings and proofs in this record.

It is next insisted that this decree should be reversed because the representatives of one Thomas F. Johnson were not made parties. Johnson is named in the bill as a party defendant, and as a subsequent purchaser of lots 46, 47, and 48 in block 1; and in relation to him it was proven at the hearing that he was dead, and it is now insisted that a decree is taken against him as well as other defendants.

An examination of the decree shows that no decree was taken against him. No order was made for the sale of the lots purchased by Johnson. Johnson's representatives do not complain, and it is not perceived that the plaintiffs in error occupy any position to question the regularity of this part of the proceeding, especially as no cross-bill was filed asking a decree as to the order of sales.

It is claimed, too, that the decree should be reversed because the default of defendants Stephen Race and Charles Race was entered after they had filed their answer. This irregularity harmed no one, for the record shows that the cause was finally heard upon the bill and the answers of the defendants, among which are mentioned the answers of Stephen Race and Charles Race. No decree was taken against these defendants, nor did they join in this writ of error.

Next it is complained “that releases have been given with an entire disregard to the equity of the purchasers of lots from Hawhe after he made the two deeds of trust.”

The interests of such of the plaintiffs in error as could by any possibility be affected by an error of the court in this respect are several, not joint. As to Charles McCarthy, he failed to answer the bill, and can not rely upon this defense, as it was not set up by him in the court below.

It is shown by this record that Arthur J. Hawhe conveyed to Hartroff lots 9 and 10 in block 6, in October, 1872; and to Harry A. Anderson lots 11 and 12 in block 6; and to Wm. H. Feindt lots 5, 6, and 7 in block 6 (this latter deed was recorded on January 4, 1872); and to Barney Anderson lot 20 in block 5; and to William Shehan lots 21 and 22 in block 5. These latter deeds were shown to have been made before the making...