Miles v. Kelly

• Decision Date: 22 March 1894
• Citation: Miles v. Kelly, 25 S.W. 724 (Tex. App. 1894)
• Parties: MILES et al. v. KELLY.
• Court: Texas Court of Appeals

25 S.W. 724

MILES et al. v. KELLY.

Court of Civil Appeals of Texas.

March 22, 1894.

Appeal from district court, McLennan county; L. W. Goodrich, Judge.

Action by M. B. Kelly against J. W. Miles and others. From a judgment for plaintiff, defendants appeal. Reversed.

Baker & Prendergast, for appellants.

FISHER, C. J.

1. The court below should have sustained the plea of limitation to all of the unpaid monthly installments that fell due more than four years prior to the filing of suit. The notes provided that the amounts should be paid off monthly. A certain amount is stated in each note that should be paid each month. One note requires these payments to commence October 1, 1884, and the other August 1, 1884. Limitation commenced to run from the maturity of each of these monthly installments.

2. The notes sued on required payment of usurious interest. This conclusion is reached from the evidence in the record and from the recitals upon the face of the notes. We do not think the appellant is estopped to urge the defense of usury, nor that the appellee, under the facts, will be permitted to assert that he is an innocent purchaser of the property, without notice of its usurious character, in order to defeat the plea of usury. The paper, upon its face, will impress an observer of its vice in this particular. Besides, in the cross-examination of the appellee he, in effect, admitted that he knew that the notes provided for more than 12 per cent. interest. From the manner in which the appellant presents the question in this court we infer that it is probable that the court below regarded the transaction between appellant J. W. Miles and appellee, in which Miles induced the appellee to purchase the notes from the building association, as a waiver of any defense of usury. Under the constitution and statutory law on the subject of usury, we are inclined to hold that a defendant cannot waive or contract away his right to insist that a contract bears usurious interest. The interest being usurious, the appellant is only liable for the amount actually received by him, less the amount he has paid.

3. We agree with the appellant that Jos. I. Moore, the notary before whom the appellants acknowledged the contract sued on, had such an interest in the matter as to disqualify him from taking their acknowledgments of the execution of the instrument. If the property in controversy was not the homestead, the acknowledgment of the execution of the contract would not be...