House v. Davis

• Decision Date: 30 September 1871
• Parties: RODNEY HOUSEv.PHILLIP DAVIS.
• Court: Illinois Supreme Court

60 Ill. 367

1871 WL 8154 (Ill.)

RODNEY HOUSE

v.PHILLIP DAVIS.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Mr. GEORGE S. HOUSE, for the appellant.

Messrs. RANDALL & FULLER, for the appellee.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

The bill was filed in this case to enjoin the collection of a judgment at law, and charging usury in the notes upon which the judgment was founded.

The consideration of the notes consisted of money borrowed and property purchased, of House, and he sold the notes to one Phileo. It is alleged that usury forms a large portion of the amount of the notes.

The usury was abundantly proved, and is indeed conceded by both parties. The bill charged that Phileo, the assignee, before the maturity of the notes, had notice of the usury, and confederated with House to cover it up. The evidence is too slight to sustain the charge. The remark of Davis to Phileo, upon the day on which the notes were renewed and made payable to the latter, must have been subsequent to the transfer of the notes and the payment of the money to House.

The only other proof to support the charge, was to the effect that five or six years before the purchase of the notes, Davis stated, in the presence of Phileo, that he was paying House, upon notes for money, twenty per cent. Phileo may have heard the remark, and he may not; and if he did, he may have forgotten it.

Such testimony is too unreliable to warrant the conclusion of notice of usury in the notes purchased. If the purchaser had any recollection of the remark, he might well suppose that the notes referred to had long been paid. We must presume that Phileo held the notes for value, and without any notice of facts which might impeach their validity between the antecedent parties.

The law encourages the use of commercial paper, and courts should not permit such weak and uncertain evidence to impede or restrain its free circulation.

We are of opinion that the court below decided correctly, that Phileo was a bona fide holder.

After the dismissal of the bill as to Phileo, the court rendered a decree, and found that he was entitled to receive the full amount of his judgment founded upon the notes assigned to him before maturity, and directed that appellant, the payee of the original notes assigned, bring into court the amount of the usury, and that the maker of the notes bring into court the balance of the judgment, by a day named.

The distinct theory of the bill is, that the purchaser of the notes had notice of the usury, and that he colluded with the payee to hold the notes in trust for him. These allegations, as we have seen, are not sustained.

The case of Woodworth v. Huntoon, 40 Ill. 131, is exactly in point, and is decisive against the relief granted.

In that case, the bill was filed against an assignee before maturity, for value, and a second assignee after maturity. The bill charged usury; notice of it on the part of the assignee; and that the assignment was colorable merely. The usury was admitted, but the court found that the first assignee was a bona fide holder before maturity, and that the remote assignee was protected through the prior innocent holder, and the bill was...