Jefferson Standard Life Ins. Co. v. Dorsey

• Decision Date: 05 April 1937
• Docket Number: 32500
• Citation: 178 Miss. 852,173 So. 669
• Court: Mississippi Supreme Court
• Parties: JEFFERSON STANDARD LIFE INS. Co. et al. v. DORSEY et al

173 So. 669

178 Miss. 852

JEFFERSON STANDARD LIFE INS. Co. et al. v. DORSEY et al

No. 32500

Supreme Court of Mississippi

April 5, 1937

Division A

1 STATUTES.

Statute providing for recovery of usurious interest and statute providing that rate of interest should not be construed as increased by stipulation for payment of interest in period less than one year must be construed in pari materia in connection with provision of Code that repeal of statutory provisions thereby should not affect cause of action nor right accruing prior to effective date of repeal (Code 1930, secs. 4, 1946, 1951).

2 USURY.

As respects retroactive operation of statute providing that rate of interest should not be construed as increased by stipulation for payment in period of less than one year statute authorizing recovery of usurious interest creates right arising from contract and not right to recover "penalty" (Code 1930, secs. 1946, 1951).

3. STATUTES.

Statute will not be construed as retroactive unless words thereof admit of no other construction or meaning and there is plain declaration therein that it is so to operate.

4. CONSTITUTIONAL LAW.

Statutory provision that rate of interest specified in contract shall not be construed as increased by stipulation for payment in period less than one year held ineffective as mandatory direction for retroactive construction of statute, since courts rather than Legislature must construe laws for past, although Legislature may determine what law shall be (Code 1930, sec. 1951).

5. USURY.

Statute providing that rate of interest specified by contract shall not be construed as increased by stipulation for payment of interest at periods less than one year held prospective in operation and not retroactive, and hence would not affect right to recover interest payments accruing prior to adoption thereof (Code 1930, secs. 4, 1946, 1951).

HON. R. E. JACKSON, Chancellor.

APPEAL from chancery court of Coahoma county HON. R. E. JACKSON, Chancellor.

Suit by L. B. Dorsey and others against Jefferson Standard Life Insurance Company and others. Decree for plaintiffs, and defendants appeal. Affirmed.

Affirmed.

Maynard, FitzGerald & Venable, of Clarksdale, and Shands, Elmore, Hallam & Causey, of Cleveland, for appellants.

Roberson, Cook & Luckett, of Clarksdale, for appellees.

OPINION

McGowen, J.

The appellees, L. B. Dorsey and wife, exhibited their bill against the Jefferson Standard Life Insurance Company, seeking the cancellation of an indebtedness and deed of trust on certain land securing the same. The appellants filed a demurrer to the bill, which was overruled by the court, and upon declining to plead further, a judgment final was entered in accordance with the prayer of the bill. In addition to seeking the cancellation of the deed of trust and debt, the bill alleged an overpayment because of violation of the usury laws of this state and prayed for a money decree for the excess payment, and this prayer was likewise granted.

On the 15th day of March, 1923, the appellees borrowed from the Insurance Company $ 4,650. The loan was evidenced by a series of five promissory notes, due annually thereafter, in installments on March 15th of each year, the final payment being $ 3,720, due March 15, 1928.

The principal notes provided for interest from date until paid at the rate of 8 per cent. per annum, payable semiannually on the 15th day of September and the 15th day of March of each year after date, to evidence which the appellees executed, on said date, ten promissory notes due successively in semiannual rests. The interest notes provided for interest, after maturity, at the rate of 8 per cent. per annum, payable semiannually until paid. It will be observed that the principal notes were made to fall due in twelve-month periods, while the interest notes were made to mature in six-month periods, and that the interest notes bore the maximum rate of interest, the interest thereon being payable semiannually.

The bill charged that this contract violated the usury statute, and that appellees had paid the principal sum of the debt, and an excess, for which they prayed a money decree. The bill was amended to show the exact figures, and there is no complaint as to the calculation of the payments and the excess due if the usury statute is to be applied against the principal indebtedness without interest.

The ground of the demurrer was that there was no equity on the face of the bill.

This is a companion case to Jefferson Standard Life Insurance Company et al. v. Ruby Ham, 173 So. 672.

The facts, as alleged in the bill of complaint here, are the same as those considered by this court in the case of Rogers v. Rivers, 135 Miss. 756, 100 So. 385, 37 A. L. R. 313, except as to dates, names, and amounts, and also the cases of Jefferson Standard Life Ins. Co. v. Todd, 151 So. 723 (not officially reported) and Jefferson Standard Life Insurance Co. v. Davis, 173 Miss. 854, 163 So. 506.

In the Ham Case, supra, we have this day declined to overrule the three cases above mentioned.

The appellants, in the case at bar, assume, for the sake of the argument, that the case of Rogers v. Rivers, supra, and the other two cases, were correctly decided, but insist that since the enactment of section 1951, Code 1930, that statute is to be construed as a curative statute, which validates and cures the contract of the vice of usury which had been theretofore for many years outlawed in this state. By the adoption of the Code of 1930 by the Legislature, presumably there went into effect simultaneously section 4 thereof as to former rights; section 1946 as to the legal rate of interest; and section 1951, the alleged curative statute.

Section 4, chapter 1, Introductory, Code of 1930, is as follows: "The repeal of any statutory provisions by this code shall not affect any act done, or any cause of action, or any right accruing or accrued or established, or any suit or proceeding had or commenced in any civil case, or any plea or defense or bar thereto, previous to the time when such repeal shall take place; but the proceedings in every such case shall be conformed, as far as practicable, to the provisions of this code."

Section 1946, Code 1930, is as follows: "The legal rate of interest on all notes, accounts and contracts shall be six per cent per annum; but contracts may be made, in writing, for a payment of a rate of interest as great as eight per centum per annum. And if a greater rate of interest than eight per centum shall be stipulated for or received in any case, all interest shall be forfeited, and may be recovered back, whether the contract be executed or executory. If a rate of interest is contracted for or received, directly or indirectly, greater than twenty per centum per annum, the principal and all interest shall be forfeited, and any amount paid on such contract may be recovered by suit." This section is brought forward without change or amendment from chapter 229, Laws 1912 (Hemingway's Code 1917, section 2075). The usury statute was construed by this court in the case of Rogers v. Rivers, supra, in the year 1924.

Section 1951, Code 1930, is as follows: "When any particular rate of interest per annum is specified in any contract or evidence of indebtedness it shall not be construed as any increase of said rate merely that the interest at the specified rate per annum is stipulated to be paid quarterly, or semi-annually, or at any other period less than a year, nor shall the fact that the principal and interest is paid at a date earlier than that stipulated in the contract or evidence of indebtedness be taken as any increase of the rate per centum although paid for the whole period stipulated."

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