Henderson v. Bellew

• Decision Date: 30 September 1867
• Citation: 1867 WL 5277,45 Ill. 322
• Parties: MATTHEW HENDERSONv.PATRICK BELLEW.
• Court: Illinois Supreme Court

45 Ill. 322

1867 WL 5277 (Ill.)

MATTHEW HENDERSON

v.PATRICK BELLEW.

Supreme Court of Illinois.

September Term, 1867.

APPEAL from the Circuit Court of Stephenson county; the Hon. BENJAMIN R. SHELDON, Judge, presiding.

This was a bill in chancery filed in the Circuit Court of Stephenson county, by Patrick Bellew, against Matthew Henderson and Jacob Reigard. The bill alleges that in May, 1863, the complainant, Patrick Bellew, purchased of Robert Bellew a lot of ground, taking a deed therefor, subject to a certain deed of trust, made by the vendor to Reigard as trustee for Henderson, to secure a note for $850, with interest at ten per cent, payable in eight months, and bearing date April 4, 1863. The bill further alleges that interest at the rate of thirteen per cent, had been agreed upon between Robert Bellew and Henderson, and claims forfeiture for usury. Claims payment of all the mortgage debt, except such as became forfeited by reason of the usury, and offers to pay any balance the court may adjudge to be due. The bill further alleges that the trustee has advertised the premises for sale to pay the balance due on the note. The bill prays for an injunction, which was granted. The defendants filed their answer. Upon the hearing the Circuit Court decreed, that, upon payment by Patrick Bellew to Henderson of the sum of $68.50, within ten days from the entry of decree, the sale of the premises under the trust deed be perpetually enjoined. From this decree Henderson prayed and obtained an appeal to this court.

The facts sufficiently appear in the opinion.

Mr. J. A. CRAIN, for the appellant.

Messrs. MEACHAM & GOODHUE, for the appellee. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

On the 4th of April, 1863, one Robert Bellew executed to the appellant, Henderson, his promissory note for $850, drawing interest at ten per cent, and at the same time executed a deed of trust upon certain real estate to secure its payment. Patrick Bellew, the appellee, subsequently bought the land from Robert, and received from him a deed with a proviso that it was subject to the deed of trust. The note being past due, and not fully paid, the trustee was about to sell, under the deed of trust, when Patrick Bellew filed his bill praying that the sale be enjoined on the ground that there was an agreement between Henderson and Robert Bellew, when the note was given, that, although on its face it drew but ten per cent interest, it should, in fact, draw thirteen per cent, and that Robert Bellew had paid interest at that rate up to February 1, 1865. The case coming on to a hearing, the above facts were proven, and also, that $475 had been paid on the 7th of May, 1866, which appears to be all that has been paid on the note except the interest, at thirteen per cent, paid by Robert Bellew. The court decreed a perpetual injunction of the sale, on the payment, by the complainant, of $68.50.

Even if this complainant could raise the question of usury, inasmuch as he comes to a court of equity and asks its interposition, he would only be entitled to it upon equitable terms, which would be the payment of the principal of the note and legal interest less the credits. Although a defendant in a court of equity may insist upon the penalties of the statute of usury, yet that court will not enforce those penalties at the prayer of a complainant, but will require him to do equity as a...