Pope v. Marshall

• Decision Date: 31 March 1887
• Citation: 78 Ga. 635
• Parties: Pope. vs. Marshall.
• Court: Georgia Supreme Court

78 Ga. 635

Pope. vs. Marshall.

Supreme Court of the State of Georgia

MARCH TERM, 1887.

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Debtor and Creditor. Title. Interest and Usury. Actions. Administrators and Executors. Contracts. Evidence. Before Judge Willis. Taylor Superior Court. February Term, 1886.

Reported in the decision.

H. A. Mathews; A. A. Carson, by C. J. Thornton, for plaintiff in error.

W. S. Wallace & Son, for defendant.

Bleckley, Chief Justice.

The action was by Pope against Marshall to recover money alleged to have been paid as usury. There was averdict for the defendant, and a motion by the plaintiff for a new trial, which was overruled.

The undisputed facts are that, in January, 1882, Marshall either lent or paid to Pope's brother, since deceased, a sum of money, took from him an absolute deed in fee simple, conveying certain real estate; also two rent notes and a written acknowledgment that he, the brother, held the premises under Marshall, as his tenant, and gave to him a bond conditioned to reconvey in the event the principal sum, together with the rent notes, should be paid. To meet the conditions of the bond required the payment of more money than was advanced by Marshall and lawful interest thereon. The brother remained in possession and died intestate, leaving the. plaintiff his sole heir at law. In June, 1883, the plaintiff, in order to clear his title as heir and raise money upon a mortgage of the land with which to pay the debts of his deceased brother, voluntarily paid the debt to Marshall, including the usury, if any, and at the same time took from him a quit-claim deed to himself. The money used in making this payment was obtained by mortgaging the land to a third person, the plaintiff executing the mortgage and thereby securing the loan. After the whole matter had been thus closed up, the present action was brought to recover back so much of the money paid by the plaintiff to Marshall as was in excess of the principal sum received by the plaintiff's brother from Marshall, together with lawful interest thereon.

The parties are at issue both upon matter of fact and matter of law. The question of fact dividing them is, whether the transaction between Marshall and the plaintiff's brother was a loan of money, with a conveyance of the land taken as security, or whether it was a purchase of the land and payment made therefor, followed by an agreement for a resale, renting, etc. in accordance with the face of the papers. The question of law is, whether, granting that the transaction involved usury as between Marshall and the deceased, the plaintiff can, after voluntarily paying it, recover it back, under the circumstances.

1. Against the plaintiff's right to recover back the alleged usury, it may be urged that as heir he was under no contract, express or implied, to pay the debt to Marshall, or any part of it; no action for it could have been maintained against him; the infected deed was utterly void, not only as title, but as security (Broach vs. Smith, 75 Ga. 159); it was therefore no incumbrance upon the plaintiff's inheritance; if it was a cloud on his title, it was created by his brother, who not only lived under it himself, but left it to hover over his heir, without showing any wish to have it dissipated; besides, the cloud was an empty mist, charged with no legal lightning that could strike the inheritance; moreover, he who voluntarily buys in a cloud of any sort is entitled to get the cloud, but not to keep it and recover his money back; the plaintiff accepted a conveyance, a quit-claim deed from the defendant, and it was in part to obtain that deed that he paid the debt; it was not his debt, but that of the intestate, and it was not paid out of the estate of the debtor, but with money belonging to the plaintiff, borrowed for the purpose by himself; while holding on to the deed made to him by the defendant, he seeks to recover back a part of the money paid to obtain it; and certainly this quit-claim deed, at least, is free from any taint of usury. Hammond vs. Buys, 1 Ga. 416.

This array of argument is plausible, and to some minds will perhaps be convincing. But we think its weak point lies in the fact that it treats the plaintiff as a mere interloper or volunteer. He succeeded by inheritance to his brother's interest in the land, whatever that was. Code, §§2246, 2483. Succeeding him in interest, he succeeded him also in the right, though not in the duty, to pay the debt and free the land from such incumbrance as there was upon it, whether that incumbrance was real or only apparent. If the fact be that Marshall made a loan to the in-testate upon the land as security, the plaintiff was entitled to treat the security...