Holladay v. Holladay

• Decision Date: 17 June 1886
• Citation: 12 P. 821,13 Or. 523
• Parties: HOLLADAY v. HOLLADAY and others.
• Court: Oregon Supreme Court

12 P. 821

13 Or. 523

HOLLADAY v. HOLLADAY and others.

Supreme Court of Oregon

June 17, 1886

Separate opinions of LORD, J., and WALDO, C.J. For original report, see 11 P. 260.

LORD, J.

Nearly all the matters involved in this case are questions of fact. It was virtually conceded at the argument that the transaction out of which the suit arose was not an absolute sale, but more in the nature of a transfer of the property in trust, as a security for the payment of certain indebtedness admitted. In the result reached upon the facts I concur, and only add this explanation to say that, being satisfied from all the facts and circumstances that the transaction was not usurious, I do not deem it necessary to express any opinion as to the mode in which the state intervened, or to give any construction to the usury statute. As the state intervened upon the evidence of the defendant given in the main suit, and that evidence, in my judgment, being insufficient to sustain any proceeding for forfeiture under the usury laws, it is immaterial whether the mode of procedure adopted by the state is correct or incorrect, or what might be the proper construction of the statute. In this particular I shall therefore reserve my judgment.

WALDO, C.J., agreed with LORD, J., as to the matter of usury, and held also that the tender stopped the interest, and that it was not necessary, in a case like this, to keep the tender good by paying the money into court. Van Husen v. Kanouse, 13 Mich. 303.