Johnson v. Groce

• Citation: 179 S.E. 39,175 S.C. 312
• Decision Date: 20 March 1935
• Docket Number: 14020.
• Parties: JOHNSON et al. v. GROCE.
• Court: United States State Supreme Court of South Carolina

179 S.E. 39

175 S.C. 312

JOHNSON et al. v. GROCE.

No. 14020.

Supreme Court of South Carolina

March 20, 1935

Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.

Action by E. W. Johnson and another against J. E. Groce, as conservator-receiver of Lyman Savings Bank. From an order overruling defendant's demurrer to plaintiffs' complaint, defendant appeals.

Order in accordance with opinion.

Horace L. Bomar, of Spartanburg, for appellant.

E. W Johnson, of Spartanburg, for respondents.

CARTER Justice.

This action by E. W. Johnson and George Dean Johnson, as plaintiffs, against J. E. Groce, as conservator-receiver of Lyman Savings Bank, defendant, commenced in the court of common pleas for Spartanburg county, June 21, 1934, is a suit for the recovery of the statutory penalty for usury. The matter was heard by his honor, Judge T. S. Sease, on a demurrer to the complaint, filed by the defendant, alleging that the complaint did not state facts sufficient to constitute a cause of action. His honor, Judge Sease, after hearing argument and upon consideration, overruled the demurrer and the case now comes before this court on appeal by the defendant from the order of Judge Sease overruling the demurrer in the cause.

For the purpose of a clear understanding of the questions involved we quote herewith, omitting formal parts, the plaintiffs' complaint and the demurrer filed by the defendant:

"1. That Lyman Savings Bank is a banking corporation under the laws of this State, with its principal place of business at Lyman in this county, where it conducted a banking business until the ------ day of ------, 1933, when its liquidation was ordered by the Board of Bank Control and the defendant, J. E. Groce, appointed and qualified as Conservator-Receiver, who is now acting as such: that this action is commenced with the consent of the Governor.

2. On March 15, 1921, Dora J. Johnson made and delivered her promissory note of which the following is a copy:

'$1,000.00 Spartanburg, S. C.,

March 15, 1921

Nov., 15, 1921 (fixed) after date, I promise to pay to the order of Miss Elma Jetter One Thousand Dollars, value received, negotiable and payable at the Central National Bank of Spartanburg, S. C., with interest after maturity at the rate of eight per cent. per annum, discount by the bank at eight per cent. being authorized. In case of suit or collection by attorney, I also agree to pay ten per cent. attorney's commissions.

Dora J. Johnson.'

On the same day, she secured the payment of the note by the execution to the payee of a mortgage of a house and lot on the north side of Harris Place in the city of Spartanburg, the mortgage being recorded in Book 122, page 277.

3. That, as plaintiffs are informed and believe, the note and mortgage were assigned to Central National Bank prior to its maturity, and that bank collected and received as interest thereon discount at the rate of eight per cent. in advance every six months up to about August 4, 1924, when it assigned the note and mortgage to Lyman Savings Bank.

4. That, since it purchased the said note and mortgage, Lyman Savings Bank exacted, collected and received as interest thereon discount at the rate of eight per cent. in advance every six months up to February 6, 1931, and, thereafter, every ninety days to July 3, 1932, the sums received in respect of interest being collected in advance as discount and being the following: $40.00, August 18, 1924; $40.00 February 3, 1925; $40.00 August 18, 1925; $40.00, February 18, 1926; $40.00, August 18, 1926; $40.00, February 16, 1927; $40.00, August 8, 1927; $40.00 February 12, 1928; $40.00, August 8, 1928; $40.00, February 11, 1929; $40.00, August 20, 1929; $40.00, February 11, 1930; $40.00, August 8, 1930; $20.00, February 13, 1931; $20.00, May 4, 1931; $20.00, August 6, 1931; $20.00, November 4, 1931; $20.00, January 4, 1932; $20.00, April 4, 1932; $20.00, October 1, 1932.

5. That Dora J. Johnson died in Spartanburg County on the ------ day of ------, 193 ---, leaving a will, which was duly admitted to probate, whereby she devised her real estate to her son, D. T. Johnson, and her grandsons, the plaintiffs, ------ two-thirds to the son, and one-third to the grandsons, to be taken in equal shares between them, the said son and grandsons being not only her only real devises but also her only heirs; that, in settlement of the estate, the plaintiffs became the owners of the mortgaged property on Harris Place and assumed the payment of the mortgage debt, and made the payments after the death of Dora J. Johnson, finally paying off the note and mortgage in full.

6. That the payments exacted and received in respect of interest by Lyman Savings Bank were usurious, in that they were demanded and received in advance every six months for a time, and every ninety days for a time, and these plaintiffs having the sole interest in the mortgaged property and the mortgage debt, and being devisees and heirs of the original maker, are entitled to recover back from the defendant double the amount of the sums collected and received by it in respect of interest on said note.

Wherefore They pray judgment against the defendant for thirteen Hundred and Twenty ($1,320.00) Dollars and costs."

Demurrer.

"1. The Complaint does not state facts sufficient to constitute a cause of action against the defendant, for the reason that it appears from the note itself that there was an agreement in writing for eight per cent. discount by the Central National Bank and also by the Lyman Savings Bank as assignee thereof.

2. The Complaint does not state facts sufficient to constitute a cause of action against the defendant, for the reason that the statute law of South Carolina under which plaintiffs are seeking to recover a judgment...