Milligan v. Cromwell.
| Citation | 3 N.M. 557,9 P. 359 |
| Parties | MILLIGAN and othersv.CROMWELL. |
| Decision Date | 18 January 1886 |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Error to district court, San Miguel county.
In a suit in equity for the foreclosure of a mortgage, on certain real estate, with power of sale, where the defendant pleaded usury, under the act of 1866, fixing the rate of interest on written contracts for the payment of money at twelve per cent. per annum, and providing that if a loan be made at a greater rate of interest the contract shall be void and the lender subject to indictment and punishment as for obtaining money under false pretenses, which act, it was claimed, though repealed by the act of 1872, abolishing the plea of usury, and permitting any rate of interest to be charged, was revived by the act of March 2, 1882, repealing the act of 1872, and that the court had no power to sell the mortgaged premises-Held: The act of 1882, repealing the act of 1872, was not such an unqualified repeal of that act as to revive the act of 1866, and the principal of the debt with interest thereon at the rate of twelve per cent. per annum is valid.
O'Bryan & Pierce, for plaintiffs in error.
Lee & Fort, for defendant in error.
This is a suit in chancery, commenced in the court below to foreclose the following mortgage:
“This indenture, made this sixteenth day of September, A. D. 1882, between Madison M. Milligan, unmarried, and James C. Milligan and Flora E. Milligan, his wife, of the first part, and Charles T. Cromwell, of Rye, New York, of the second part, witnesseth that the said parties of the first part, for and in consideration of the sum of ($2,000) two thousand dollars, to them in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, and for the further consideration of the debt hereunder mentioned and created, have granted, bargained, sold, demised, conveyed, released, and confirmed, and by these presents do grant, bargain, sell, remise, convey, release, and confirm unto the said party of the second part, his heirs and assigns, forever, all the following described lot or parcel of land and real estate situate, lying, and being in the county of San Miguel and territory of New Mexico, and better described as follows, to-wit:
“That certain lot on the northerly side of Center street, being the second house and lot easterly from the corner of Grand avenue, being parts of lots 18, 19, and 20, of block No. 8, in East Las Vegas, beginning at a point 25 feet easterly from the S. W. corner of lot 18, in said block; thence easterly along Center street 25 feet; thence northerly along said lots 18, 19, and 20, 75 feet. thence westerly along the line of lot 20, 25 feet; thence southerly 75 feet across lots 18, 19, and 20, to the place of beginning,-being part of the Las Vegas grant, made in 1835, and confirmed by congress in June, 1860; together with all and singular the lands, tenements, hereditaments, and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereon, and all the estate, right, title, interest, claim and demand whatsoever of the said parties of the first part, either in law or in equity, of, in, and to the above bargained and described premises, with the hereditaments and appurtenances, to have and to hold the said premises above bargained and described, with the appurtenances, unto the said party of the second part, his heirs and assigns, forever: provided, however, and these presents are upon the condition, whereas, the said parties of the first part are justly indebted unto the said party of the second part in the sum of $2,000, as evidenced by a promissory note bearing even date herewith, which said note is in the words and figures as follows, to-wit:
“‘LAS VEGAS, N. M., September 16, 1882.
‘Two years after date, for value received, we, jointly and severally, promise to pay to Charles T. Cromwell, or order, without defalcation, $2,000, with interest at the rate of 15 per cent. per annum, payable for the first year half yearly, after that quarter yearly; both principal and interest to be paid, with exchange on New York, at the San Miguel National Bank, of Las Vegas, New Mexico, with interest at said rate on each payment for six days from the date of each payment unto said bank, and remittance.’
And the said parties of the first part being anxious to secure the payment of said sum of money in said promissory note mentioned when the same shall become due and payable, together with all interest that may accrue thereon: now, therefore, if the said parties of the first part, their heirs, executors, administrators, or assigns, shall well and truly pay, or cause to be paid, to the party of the second part, or to his order, the said sum of money in said promissory note specified, when the same shall become due and payable, together with all interest that may have accrued thereon, then, and in that case, this indenture shall be null and of no effect, and absolutely void.
But in case of the failure of the payment by the said parties of the first part, their heirs and executors, administrators, and assigns, of the said principal or interest sums of money in said promissory note specified, when the same severally shall become due and payable, together with all interest that may have accrued thereon, then, and in that case, the said party of the second part, or his agent or attorney, is hereby authorized and empowered to take possession of said granted house and real estate and premises; and, after having given notice of the time and place of sale by four hand-bills posted at public places in the county of San Miguel at least twenty days prior to the sale, or by notices published in some newspaper printed in the county of San Miguel at least twenty days prior to the time of sale, expose at public auction, at the south steps of the court-house, in Las Vegas, to the highest bidder, for cash, the said granted premises, house, and real estate, and to execute and deliver to the purchaser or purchasers thereof a good and sufficient deed therefor, and to apply the proceeds arising from said sale to the payment of the costs and expenses of the foreclosure. And the parties of the first part agree to insure, and keep insured, the buildings on said___to their insurable value, and assign the policy to the said...
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Gallegos v. Atchison
...of a contrary legislative intent expressly declared or necessarily to be implied from some legislative expression. Milligan et al. v. Cromwell, 3 N. M. 557, 9 Pac. 359; Lewis' Sutherland Statutory Construction, § 288, p. 561; 25 R. C. L. § 184, p. 932; James v. Dubois, 16 N. J. Law, 285; Wa......
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State v. Elder.
...law and the revival of the original law by such repeal. In fact it has been expressly held by this court, in the case of Milligan v. Cromwell, 3 N. M. 557, 9 Pac. 359, that unless it is made clear by the law repealed in the repealing act that the original law is not thereby to be revived, t......
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Ex Parte Armijo.
...on open accounts and contracts were fixed, and provision was made that no recovery could be had at a greater rate. In Milligan v. Cromwell, 3 N. M. 557, 9 P. 359, the territorial court examined these statutes, and held that the act of 1872 repealed the act of 1866, and that the repeal of th......