Lowe v. Walker

• Decision Date: 11 November 1905
• Citation: 91 S.W. 22
• Parties: LOWE et ux. v. WALKER et al.
• Court: Arkansas Supreme Court

91 S.W. 22

LOWE et ux. v. WALKER et al.

Supreme Court of Arkansas.

November 11, 1905.

Appeal from Phillips Chancery Court; Jacob Fink, Special Chancellor.

Suit by W. H. Lowe and wife against George Walker and another. From a decree in favor of defendant Walker, plaintiffs appeal. Reversed in part.

Appellant W. H. Lowe brought this suit in equity to cancel, on account of alleged usury in the contract, a certain mortgage or deed of trust on lands executed by himself and wife, Roxie, to secure a note to Mrs. Jennie F. Rice, which had been assigned to appellee George Walker. Mrs. Rice, Walker, and the trustee in the deed were all made parties defendant and answered separately. Mrs. Rice answered, denying that there was any usury in the contract, that she had assigned the note and security to Walker, and therefore had no further interest in the controversy. Walker filed his answer and cross-complaint which, after denying the allegations of the complaint as to usury, is as follows: "Further answering, he says that some time prior to the 4th day of December A. D. 1901, the complainant herein came to this defendant and requested him to make him a loan for the purpose of paying off a deed of trust held by Jennie F. Rice, the codefendant herein; that the said complainant stated that he owed her a debt of about five hundred dollars after all payments were deducted; that this defendant first declined, but later on, after numerous importunities on the part of the plaintiff, he finally agreed to make the loan to him; that in a few days thereafter he prepared, and the complainant herein executed, a new deed of trust to cover said debt and expense incident thereto, which said deed of trust was to be held until the following week, when the complainant would bring his wife to the city to execute the same; that upon the execution of said new deed of trust by the complainant, and the promise that his wife would come and execute the same the following week, this defendant paid off the debt to his codefendant, Jennie F. Rice, and took an assignment thereof without recourse; that notwithstanding said promise and agreement on the part of the complainant to have his wife come in the following week and execute said new deed of trust, it was never done, but, on the contrary, the next news had of complainant was the service of a summons herein on said defendant. That said defendant says that, but for the insistent solicitation on the part of the complainant, he would never have had anything to do with said deed of trust and note made to the said Rice; that he took the assignment of the same at the special instance and request of the complainant, without any dealings whatever with his codefendant herein other than the paying to her the amount due as represented by the complainant. The premises considered, this defendant submits to the court that if there was usury in said debt the complainant is estopped from asking this court to declare said deed of trust and notes void, for the reason that it was through his acts, importunities and urgent solicitation that this defendant has parted with his money, and has become a creditor of said complainant and the owner of said deed of trust and the note. And for further answer, and by way of a cross-bill, this defendant says that he took an assignment of the note and deed of trust aforesaid with the distinct understanding and agreement with the complainant that said complainant and his wife would execute and deliver to him a new deed of trust covering said debt; that said complainant has wholly failed to carry out said agreement, and by the filing of this complaint serves notice on this defendant that he will never carry out said agreement. Wherefore defendant asks to have this taken as and for his answer and cross-bill: That the complainant take nothing by his said suit; that this defendant have judgment decreeing the foreclosure of the deed of trust made by the complainant in favor of the said Jennie F. Rice, for the amount due this defendant; and that the property therein described be sold to satisfy his said debt, and for such other and further relief as in equity he may be entitled to." Appellant Roxie Lowe was also made a defendant to the cross-complaint, but neither she nor W. H. Lowe answered same. W. H. Lowe testified that he borrowed $450 from Mrs. Rice and agreed to pay her 25 per cent. per annum interest thereon; that he applied to defendant Walker for a loan of money with which to pay off his debt to Mrs. Rice, and represented to Walker that $495 was the correct amount which he owed to Mrs. Rice, computing the interest at 10 per cent. per annum, which he also represented that Mrs. Rice had agreed to accept; that thereupon Walker agreed to lend him the money, and paid...