McLaurin v. Hodges

• Decision Date: 19 February 1895
• Citation: 20 S.E. 991,43 S.C. 187
• Parties: McLAURIN v. HODGES et al.
• Court: South Carolina Supreme Court

20 S.E. 991

43 S.C. 187

McLAURIN v. HODGES et al.

Supreme Court of South Carolina

February 19, 1895

Appeal from common pleas circuit court of Marlboro county; J. J Norton, Judge.

Action by Lauchlin B. McLaurin against Charlotte I. Hodges and John L. Hodges to foreclose a mortgage. Counterclaim by defendants for usurious interest. From an order denying a motion for a reference to a referee, and one placing the cause on calendar for trial by jury, plaintiff appeals. Reversed.

Hudson & Covington, for appellant.

Newton & Shipp, for respondents.

POPE J.

On 1st December, 1881, the defendant Charlotte I. Hodges made and delivered her bond, of that date, in the penalty of $6,000 conditioned to pay $3,000, 12 months thereafter, with interest from date until fully paid, and payable annually, to the plaintiff; and at the same time, in order to secure the payment of said bond, she executed to him a mortgage of a tract of land in Marlboro county, in this state, said to contain 200 acres, more or less. By law, said $3,000 bore 7 per cent, interest. On the 27th February, 1884, we suppose in consideration of further time upon said bond, said defendant agreed in writing to pay interest thereon from the 1st day of December, 1883, at 10 per cent. per annum. Interest was fully paid until and up to 1st December, 1883. On the 19th February, 1885, $100 was paid; on the 2d March, 1885, $200 was paid; on the 5th February, 1887, $330 was paid; on the 2d February, 1888, $340 was paid; on the 17th February, 1890 $300 was paid; on the 22d of April, 1891, $300 was paid; on the 31st May, 1892, $300 was paid; and on the 15th March 1893, $300 was paid; and no other or further payments were made thereon. The plaintiff, at some time prior to 28th September, 1894, began this action against the said Charlotte I. Hodges and John L. Hodges, as defendants. His complaint recites the foregoing facts; alleges a breach of the conditions, the amount due on the bond, that John L. Hodges is in possession of the land as agent of his codefendant; and seeks a foreclosure of the mortgage. To this complaint the defendant Charlotte I. Hodges alone makes answer. While she admits the execution of the bond and mortgage, as well as the payment due thereon, she sets up two defenses. In the first, she alleges that the contract was tainted with usury, in this: That, although $3,000 is nominated in the condition of the bond, yet that on the 1st December, 1881, she only received $2,910 in money; and that when she paid $210 on 1st December, 1882, and the interest, which was 7 per cent. on the $3,000, yet, in fact, by the payment of the $90 on 1st December, 1881, and the $210 paid on 1st December, 1882, she actually paid 10 per cent. interest, when the law only allowed 7 per cent.; and that, by reason of usury, the plaintiff is only, under the law, entitled to recover the principal loaned,--$2,910,--without any interest thereon. As her second defense, she alleges that the plaintiff is indebted to her, as by a counterclaim, in the sum of $5,540; that, last amount being double the whole interest, to wit, $2,770, she had paid the plaintiff as usurious interest.

The action was placed upon calendar 2, and on being called for a hearing before his honor, Judge Norton, the plaintiff asked for the usual order of reference in a cause on the equity side of the court. To this, however, the defendant objected insisting that the action should be placed upon calendar 1, where her defenses of usury and counterclaim could be tried by a jury, urging this both as a matter of discretion in the presiding judge and as a matter of right demandable by the defendant. After argument, the presiding judge passed the following order: "This action is one in usual form to foreclose a mortgage upon real estate, and the case was called for a hearing on calendar 2, upon which it had been duly docketed. The jurors for the term had been discharged. After reading of the pleadings, counsel moved for an order of reference in the form hereto appended. This motion was resisted by counsel for the defendant, who claimed that the pleadings raise an issue of fact for trial by jury, demandable as a matter of right. Counsel for the plaintiff contended that the action presents a case in equity, triable by the court, and should be referred to a referee, as is usual in such cases. The defense is usury and to recover double the amount of the usurious interest: I regard this as a statutory action by defendant against the plaintiff for the recovery of money only, and that the defendant Charlotte I. Hodges has a right to demand that this counterclaim and plea of usury be tried by a jury. Had I the discretion to grant or refuse the application for a trial by jury, I would refuse it, and sign the order of reference--First, because the defendants, by counsel, had not conformed to rule 28 of the circuit court; and, secondly, because, as a matter of discretion, I would prefer to have the issue tried by the court upon the report of a referee, as a case in equity. The motion for a reference is therefore refused, and the case is ordered to be placed on calendar 1, for trial by jury of the pleas of usury and counterclaim." From this order the plaintiff has appealed, upon these grounds: (1)) Because it is respectfully submitted that his honor erred in holding that the defenses of usury and counterclaim, interposed to the plaintiff's action of foreclosure by ...