Hewitt v. Dement

• Decision Date: 30 September 1870
• Citation: 1870 WL 6661,57 Ill. 500
• Parties: GURDON HEWITT et al.v.CHARLES DEMENT et al.
• Court: Illinois Supreme Court

57 Ill. 500

1870 WL 6661 (Ill.)

GURDON HEWITT et al.

v.CHARLES DEMENT et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Stephenson county; the Hon. BENJAMIN R. SHELDON, Judge, presiding.

Messrs. THOMAS J. TURNER & SON, for the plaintiffs in error.

Mr. WILLIAM BARGE, for the defendants in error.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was a bill in equity, filed by defendants in error, in the Ogle county circuit court, against plaintiffs in error, which, in substance, was to restrain the sale of certain real estate which was about to take place under and by virtue of a power of sale contained in a trust deed upon the lands of Charles Dement, which deed had been executed to a trustee to secure Gurdon Hewitt, senior, for moneys loaned by him to said Charles Dement. The ground upon which it was sought to restrain the sale was, that the trustee was proceeding to sell for more than was legally or equitably due said Hewitt, for the reason, among others, that a considerable sum should be deducted for usury in said loans. The bill prayed that an account might be taken between the parties to the transaction out of which the security arose, was verified by oath, but waived the necessity of an answer under oath. Answers were filed, which are very full and voluminous. The cause was brought to issue by replications, and the venue thereof changed to Stephenson county, where it was heard upon pleadings and proofs, the amount due to Hewitt ascertained, and a decree accordingly, and enjoining the residue. The defendants below bring the record to this court by writ of error. The errors relied upon for reversal are: first, in permitting amendments of the bill; second, in finding the issue as to usury in favor of complainants, and third, in respect to items and the results of the account between the parties.

Was there error in allowing amendments, for which the decree should be reversed? Three amendments were made, the last of which was upon the argument of the cause.

The whole subject is covered by the statute. The 34th section of the chancery act (R. S. 1845, 97) declares that circuit courts, when sitting as courts of equity, may permit the parties to amend their bills, petitions, pleas, answers and replications, on such terms as the court may deem proper, so that neither party be surprised or delayed thereby. Here there was obviously no delay occasioned by the amendment, and we are unable to see that plaintiffs in error were surprised thereby. The amendment was not made for the purpose of adapting the pleadings to complainants' proofs, but to that of the defendants' already in. If they were surprised by the amendment, they have certainly failed to show how or wherein.

In Jefferson County v. Ferguson et al. 13 Ill. 33, four amendments were allowed to the bill, two of which were permitted after the case had been argued, and while it was under advisement in the court below. The permitting of these amendments was assigned for error. The court said: “We do not think that the decree should be reversed for this cause alone. As a general rule, these amendments are in the discretion of the circuit court, and when admitted for the furtherance of justice we ought not to listen to the objection, unless the party can show that his substantial rights have been prejudiced by the amendments which have been allowed.” See also McArtee v. Engart, 13 Ill. 250; Moshier v. Knox College, 32 Ill. 163; Mason et al. v. Bair, 33 Ill. 199; Farwell v. Meyer et al. 35 Ill. 51; Marble v. Bonhotel, 35 Ill. 240; De Wolf v. Pratt et al. 42 Ill. 198; Craig v. The People ex rel. 47 Ill. 487. We are of opinion there was no error in permitting the amendments.

The second assignment of error relied upon is, that the court erred in finding that there was usury in the note of $5,000 given Sept. 28th, 1852.

This assignment of error involves the principal question arising upon the evidence, which has been discussed by counsel. We have carefully weighed the evidence, and come to the conclusion that it sustains the finding of the court below.

There are few instances of the violation of law, falling under the scrutiny of courts, which have summoned to their aid so many ingenious devices to conceal their real character, as those of the laws against usury. These instances, from the actual or presumed disparity of condition between the parties, the borrower being generally controlled by a necessity which places him measurably within the power of the lender, have ever formed an exception to the general rule that parties shall be deemed in pari delicto, when they intentionally participate in the violation of law; because the borrower is regarded as being under such constraint of circumstances, such moral duress, as to take from him the character of particeps criminis. From these considerations has arisen a sort of policy of the courts, which has dictated the duty of exercising a high degree of scrutiny and astuteness, in respect to transactions alleged to be usurious. To that end, rules of evidence, firmly established as to other classes of cases, are made to yield to the searching investigation and stern inquisition demanded by that policy. Parol evidence is admissible to vary or contradict written contracts, or to show that a contract in the form of an absolute sale, was but a security for a usurious loan. Ferguson v. Sutphen, 3 Gilm. 547.

The arrangement for the loan of the $5,000 in question, was made at Dixon, Ill. on the 28th of September, 1852. It was made between Gurdon Hewitt, senior, and Charles Dement, both of whom were witnesses in the case. In the principal features of that arrangement they both concur. A note to Hewitt for $5000, bearing that date, was drawn up by him and signed by Charles and his brother, John Dement, whereby they agreed to pay Hewitt that sum, payable in installments as follows: $1700 in three years, the same sum in four years from date, and the balance of $1600 in five years from date; all to draw interest at the rate of ten per centum per annum. Both principal and interest were payable in the state of New York. The instrument recited, that it was given for money borrowed of Hewitt at Dixon, and provided that upon any default as to principal or interest the whole should thereupon become due. The agreement also was, that Charles Dement and wife should execute a deed of trust upon certain lands situate in Ogle and Lee counties, Ill. to secure the note. Hewitt prepared this deed and it was executed. Then, as Hewitt lived in Owego, Tioga county, in the state of New York, and was obliged to return home immediately, and, as he, as yet, had caused no examination to be made of the title to the...