Lessley v. Beaird, 5 Div. 212
| Decision Date | 26 March 1936 |
| Docket Number | 5 Div. 212 |
| Citation | 168 So. 143,232 Ala. 432 |
| Parties | LESSLEY v. BEAIRD. |
| Court | Alabama Supreme Court |
Rehearing Denied May 28, 1936
Appeal from Circuit Court, Coosa County; W.W. Wallace, Judge.
Suit in equity by T.T. Lessley against J.A. Beaird, and cross-bill by respondent. From a decree sustaining a demurrer to the original bill as amended and overruling demurrer to the cross-bill, complainant appeals.
Affirmed in part, reversed in part, and remanded.
H.H McClelland, of Talladega Springs, for appellant.
Henry A. Teel, of Rockford, and L.H. Ellis, of Columbiana, for appellee.
Two decrees, one sustaining demurrers to section 11 of a bill in equity, added as an amendment to the bill as theretofore amended, and one overruling demurrers to the cross-bill, were rendered on the same date.
The record discloses an appeal as from one decree. Assignments of error and briefs are directed to both. They will be so considered.
The original bill was filed to enjoin the threatened foreclosure of a mortgage on lands under power of sale, to purge the mortgage debt of usury, to abate the amount of the mortgage debt, given for purchase money, because of partial failure of title, and to redeem.
By amendment, it was sought to rescind the purchase, and have a mutual accounting.
The cross-bill sought a foreclosure in equity. Without question the principal of the mortgage debt was not fully paid, if abated by failure of title to 1 1/2 acres and shortage in acreage of some 4 to 5 acres, as averred in appellant's bill. The cross-bill alleges a default in payment of the mortgage debt, denies the charge of usury, any breach of warranty or failure of title, or shortage in acreage affecting the amount of the mortgage debt.
Demurrers going to the equity of the cross-bill as a whole were clearly without merit, and properly overruled.
Treating the demurrers to the cross-bill as challenging the special aspect of same relating to usury, we consider the sufficiency of the cross-bill in that respect.
Without dispute the mortgagee sold the mortgagor the tract of land recited in the deed to contain 133 acres, more or less, for an agreed price of $2,500, payable in ten annual installments, with interest from date. Instead of giving notes of $250 each, bearing interest from date, it was desired to pay an equal amount each year.
The cross-bill avers a third person, an attorney, was engaged to make the calculation on an 8 per cent. basis, and ascertain the amount of each note, the interest to be included and notes not to bear interest until after maturity. He calculated the amount of each note to be $360. They were executed accordingly of date, February 13th, the first payable December 1st of the same year, 1928, and the other nine, December 1st of each year following. It further appears that in closing the deal two other notes of $62.50 each were executed. The cross-bill alleges this was on an insistence by the purchaser that the calculation on which the $360 notes were drawn was in error to the injury of the seller, the notes too little, and $125 should be added. Hence, the two notes of $62.50 which, the cross-bill avers, were later delivered up to the maker.
Appellant now insists the $360 notes were usurious, because on their face they include usurious interest.
Under the averments of the cross-bill there was no usury, if indeed the notes, by miscalculation, included more than 8 per cent interest. Usury laws are penal, depend upon the intent of the parties, at least of the creditor. If an error of this character entered into the notes, it would merely result in reducing them to the amount of legal interest, not a forfeiture of all interest.
We do not mean to say that this calculation did include excess interest.
It would seem in making up the amount, the calculation was made by simply figuring interest on each installment for the time it was to run in full years, adding the several interest items to the principal and dividing the whole by ten. $3,600, the aggregate, would thus include interest on the whole $2,500 for one month and 13 days, approximately $25 too much, the transaction being had on February 13, 1928.
But the calculation was made on the basis most favorable to the debtor, calling for no payment of annual interest on the principal debt. If ...
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