Olson v. Caufield
| Decision Date | 21 June 1919 |
| Citation | 182 P. 527,32 Idaho 308 |
| Court | Idaho Supreme Court |
| Parties | ERICK OLSON, Respondent, v. HENRY CAUFIELD, as Administrator of the Estate of JAMES O'HARA, Deceased, and BELZIMERE O'HARA, Appellants |
MORTGAGES-FORECLOSURE-INCLUSION OF TAXES PAID-INTEREST-USURY-EVIDENCE-PROOF.
1. The purchase from the county by a mortgagee of tax sale certificates and delinquency certificates is a payment of taxes within the meaning of the latter term in a mortgage providing that it should secure the mortgagee for any taxes paid by him on the mortgaged property.
2. The foregoing rule obtains notwithstanding the taxes show on the record as unpaid, for such certificates show on their face that the county has received the sums due for the taxes therein specified, and when introduced as evidence the certificates become merged in the judgment of foreclosure.
3. In supporting an allegation that a written obligation, honest on its face, is really corrupt and usurious, all material circumstances connected with its execution that tend to show its real nature may be shown by parol.
4. When a contract on its face discloses no appearance of usury, it is presumed to have been made in good faith, and it is for the party who alleges that a corrupt and usurious intent lurks behind such a contract to prove the truth of his allegation.
5. All the facts constituting usury should be proven with reasonable certainty. Evidence which creates in the mind nothing further than a mere surmise, suspicion, conjecture or doubtful inference that the transaction is usurious, or which is intrinsically improbable, is insufficient.
6. Whether or not a corrupt and usurious intent lurks behind a contract, honest on its face, may be determined from all the surrounding circumstances tending to show the real intent of the parties and the true nature of the transaction.
7. Where the evidence is conflicting and there is substantial evidence to support a finding, it will not be disturbed.
8. The defense of usury, in order to be available in an action upon a contract, fair and honest on its face, and where none of the instruments introduced in evidence disclose on their face usury with respect to the contract sued upon must be affirmatively plead in the answer. Otherwise evidence of usury sought to be introduced by the defense would not be responsive to any issue in the case, and would be inadmissible.
APPEAL from the District Court of the Second Judicial District, for Clearwater County. Hon. Edgar C. Steele, Judge.
Action to foreclose mortgages. Judgment for plaintiff. Affirmed.
Judgment affirmed. Costs awarded to respondent.
Chas L. McDonald and Clay McNamee, for Appellants.
"To render a transaction usurious, it is not necessary that excessive interest should have been actually taken or received; that the parties contracted for usurious interest is sufficient." (29 Am. & Eng. Ency. of Law, 483.)
F. E Smith, John R. Becker and F. S. Randall, for Respondent.
In the case of a contract not usurious on its face, it is incumbent on the debtor or any other party seeking to set up a verbal agreement purporting to modify such written contract to specially plead such defensive matter in order that plaintiff may have a fair opportunity to prepare for trial and rebut such evidence. (39 Cyc. 1039, 1041, 1045, 1048.)
"When a transaction alleged to be usurious shows no usury on its face, evidence must be adduced fully to prove some corrupt device or shift to cover usury." (39 Cyc. 1056.)
This is an action to foreclose two mortgages, covering the same property, given by James O'Hara, deceased, and Belzimere O'Hara, his wife, to respondent. The first was given on February 8, 1909, as security for a note of that date for $ 1,314, due January 1, 1912, bearing interest at the rate of 10 per cent per annum; the second was given on December 16, 1913, securing a note for $ 1,218.73, due December 16, 1914, which also bore 10 per cent interest until maturity and 12 per cent thereafter. The defense with respect to both of the foregoing notes and mortgages is usury.
Judgment was entered in favor of respondent for the principal sums included in the notes and mortgages, together with the accrued interest, costs, attorney fees, and certain taxes paid by respondent, and decreeing the foreclosure of the mortgages. This appeal is from the judgment.
We are met in limine with a motion to dismiss the appeal and a motion to strike appellants' brief from the files of this court. Both motions are denied.
At the trial no effort was made to introduce any evidence on the issue of usury as to the first mortgage and the only point relied upon by appellants affecting the first mortgage relates to the admissibility of a tax sale certificate for the 1912 taxes on the property covered by the mortgage, issued to respondent, for the sum of $ 29.87, and a delinquency certificate for the 1913 taxes on the same property for $ 29.45, assigned by the county auditor of Clearwater county to the respondent.
The right of respondent to recover for taxes paid by him on the mortgaged land is not questioned, but it is contended by appellants that while these certificates are outstanding, the taxes show on the record as unpaid, and that there is nothing to prevent respondent from assigning these certificates to an innocent purchaser, thus, in the event of a redemption from the mortgage sale, leaving the certificates still to redeem, although paid for in redeeming the property.
There is no force in this contention. The certificates show on their face that respondent has paid to the county the sums due for the taxes therein specified. The certificates were admitted in evidence and were merged in the judgment of foreclosure.
The consideration going to make up the amount, $ 1,218.73 specified in the second note and mortgage of December 16, 1913, consisted of unpaid interest which had accrued on the first note, certain obligations paid by respondent for and on behalf of the deceased, and additional money advanced. There is nothing on the face of the note or the mortgage which would tend to indicate usury. But it is contended by appellants that,...
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