Neil v. Bunn

• Decision Date: 31 January 1877
• Citation: 58 Ga. 583
• Parties: Lea Neil, plaintiffin err0r. in err0r. v. Marcus H. Bunn, defendant in error.
• Court: Georgia Supreme Court

58 Ga. 583

Lea Neil, plaintiffin err0r. in err0r. v. Marcus H. Bunn, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1877.)

Usury. Contracts. Promissory Notes. Before Judge Underwood. Polk Superior Court. February Term, 1876.

Reported in the opinion.

Turner & Glenn, by E. N. Broyles, for plaintiff in error.

Ivy F. Thompson, by brief, for defendant.

Jackson, Judge.

The defendant filed two pleas in bar of the foreclosure of the mortgage, both of which were stricken. The error assigned here is the act of the judge in striking these pleas.

1. The first was usury. The note, to secure which the mortgage was given, was made in 1871, and due in 1875. The mortgage was made in 1874, when there was in this state no limitation upon the rate of interest, and when the mortgage was executed it was agreed that interest should run at 10 per cent. from the maturity of the note. We think that *this plea was properly stricken. The seal to the mortgage imports a consideration for the increased interest and it is not alleged that there was no consideration therefor. At the date of the mortgage the parties could stipulate for any interest.

2. The second plea was, that the consideration of the note and mortgage was land; that plaintiff had given his bond for title to certain lots, and, when he made his deed, had left out one lot, worth $300.00: but there was no allegation that it was left out by fraud, accident or mistake, or even without the consent of the defendant, who accepted the deed as written. We think that the plea was not such an equitable plea as would authorizethe deed to be reformed, or the $300.00 to be set off or recouped, as the party had accepted it, and seemingly acquiesced in it until the mortgage was pressed for foreclosure.

Judgment affirmed.