Lowe v. Walker
Decision Date | 11 November 1905 |
Citation | 91 S.W. 22,77 Ark. 103 |
Parties | LOWE v. WALKER |
Court | Arkansas Supreme Court |
Appeal from Phillips Chancery Court; JACOB FINK, Special Chancellor reversed as to Mrs. Lowe; affirmed as to W. H. Lowe.
STATEMENT BY THE COURT.
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 and alleging 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:
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 the amount, $ 495, to Mrs. Rice in his presence and at his request, taking an assignment of the note and mortgage. Walker testified, substantiating each of the statements of his answer and cross-complaint. He also testified that he had no information of usury in the contract between Lowe and Mrs. Rice.
The chancellor rendered a decree in favor of Walker for recovery of the debt, interest and cost of suit and declaring the same a lien on the lands. W. H. Lowe and wife both appealed from the decree, and W. H. Lowe executed a supersedeas bond with security.
Decree affirmed, reversed and remanded.
W. G. Dinning, for appellant.
1. The mortgage and note to Mrs. Rice are absolutely void for usury, even against an innocent purchaser for value before maturity. Kirby's Digest, § 5390; 41 Ark. 331; Constitution, art. 19, § 13.
2. There was no estoppel. 11 Am. & Eng. Enc. Law, 424; Webb on Usury, pp. 507, 509, 510; Tyler on Usury, p. 418; 11 Am. & Eng. Enc. Law, p. 436; 125 U.S. 247. None of the three essentials necessary to invoke estoppel can be found. Ubi supra. If a purchaser has notice of the usury, he is not protected. 15 Iowa 362; 106 N.Y. 70; Jones on Mortgages, § 645; 44 N.Y. 398; 38 N.Y. 7; Webb on Usury, § 442; 62 Ark. 92; 8 Id. 157; 40 N.E. 500; Webb on Usury, § 162; 67 N.W. 693; etc. The burden was on Walker to show he had knowledge of usury, etc. Tyler on Usury, p. 418; 22 N.Y. 312; 44 N.Y. 402-3; 11 Am. & Eng. Enc. Law, 434.
3. Any promise to pay any part of an usurious debt can not be enforced as long as the contract that supports it remains unrevoked. 62 Ark. 376; 53 Id. 345; 96 Pa.St. 430.
4. It certainly was error to bar Mrs. Lowe of her homestead and dower rights. 15 Am. & Eng. Enc. Law, 547; 59 Ark. 211; 43 Am. St. Rep. 28. Married women are not barred by estoppel. 15 Am. & Eng. Enc. Law, pp. 803, 805-6.
John I Moore, for appellee.
1. Even if the plea of usury was available, there is no proof to sustain it, and the burden was on appellants. 57 Ark. 251. Usury never inferred, it must be proved. 68 Ark. 162.
2. Walker was not a volunteer, but paid at the request of Walker. 32 Ark. 258; 39 Id. 531; 44 Id. 504; 50 Id. 205; 68 Id. 369; 30 L. R. A. 829; 72 Miss. 1058.
3. Walker was an innocent party, and Lowe is estopped. 36 Ark. 96; 33 Id. 465; 96 U. S. approved in 37 Ark. 47; 64 Ark. 639; 74 Ala. 243; 64 Ark. 583; 30 P. 811; 111 Ga. 221; 80 Ill. 541; 90 Ind. 386; 80 Iowa 542.
4. There was no proof of homestead. If it was desired that pleadings be certified, a motion should be made to that end. 71 Ark. 609.
OPINIONMCCULLOCH, J., (after stating the facts.)
There can be no doubt that the chancellor was right in rendering a personal decree against appellant W. H. Lowe for the amount of appellee's claim. According to his own testimony, appellee advanced him the money as an independent loan to pay off the mortgage debt to Mrs. Rice. Appellee was not affected by usury in the contract between Lowe and Mrs. Rice. Conceding that the debt was tainted with usury, Lowe elected to pay it, and procured its payment by appellee. He cannot defeat his liability to appellee for the money because the original debt to Mrs. Rice which it extinguished was tainted with usury.
Nor can W. H. Lowe complain at the decree declaring the debt to be a lien on the land. His own conduct estops him. Rogers v. Galloway College, 64 Ark. 627, 44 S.W. 454; Harrison v. Luce, 64 Ark. 583, 43 S.W. 970. It is true that, as the original debt and mortgage to Mrs. Rice were void on account of...
To continue reading
Request your trial-
Stiewel v. Webb Press Co.
... ... 28, 1902, the El Dorado Compress Company was incorporated by ... E. H. Lake, J. S. Alphin, E. H. Smith and C. T. Walker; the ... capital stock specified in the articles of incorporation ... being 1600 shares of $ 25 each, subscribed, 780 shares by ... Lake, 580 ... part of the contract if the officers had not already executed ... the mortgage and notes. Lowe ... ...
- Weaver-Dowdy Company v. Martin
-
Naill v. Kirby
... ... W ... Naill, in the land described in the complaint, and to have a ... deed from James Hill and wife to G. W. Walker treated as a ... mortgage which has been fully satisfied ... The ... defendant, John Kirby, defended the suit on the ground ... ...
- Johnson v. Graham Brothers Company