Ryan v. Southern Mut. Bldg. & Loan Ass'n

Citation27 S.E. 618,50 S.C. 185
CourtUnited States State Supreme Court of South Carolina
Decision Date27 July 1897
PartiesRYAN v. SOUTHERN MUT. BUILDING & LOAN ASS'N.

27 S.E. 618
50 S.C. 185

RYAN
v.
SOUTHERN MUT. BUILDING & LOAN ASS'N.

Supreme Court of South Carolina.

July 27, 1897.


Res Judicata—Usury—Action for Penalty.

Rev. St. § 1391, providing that any person who shall receive a greater amount of interest than provided in the preceding section shall, in addition to the forfeiture of interest therein provided, forfeit double the sum "so received" (i. e. "upon any contract * * * for the hiring * * * of money, " section 1390), to be collected by a separate action, etc., does not authorize such action where the only money received was the proceeds of sale under a decree of foreclosure in a former suit on a contract, to which the party seeking to recover such penalty might have interposed the defense of usury.

Appeal from common pleas circuit court of Barnwell county; D. A. Townsend, Judge.

Action by G. K. Ryan against the Southern Mutual Building & Loan Association and J. Allen Tobin, as receiver of said association. From a judgment for plaintiff, defendant Tobin, as receiver, appeals. Reversed.

Patterson & Holman, for appellant.

Bellinger, Townsend & O'Bannon, R. C. Holman, and B. T. Rice, for respondent.

JONES, J. This is an action under section, 1391, Rev. St., for double the sum alleged to have been received of plaintiff by the defendant association in excess of lawful interest. The jury found a verdict in favor of plaintiff for ¥2, 864.50, and from the judgment entered thereon the defendant Tobin, as receiver of the defendant association, appeals, on the ground that the circuit court erred in refusing his motion for nonsuit. The defendant Tobin, as receiver, in his answer, after a general denial, set up as a defense that "the action could not be maintained, because the questions involved in said action were res adjudicata, for the reason that in an action in the court of common pleas for Barnwell county the said Southern Mutual Building and Loan Association had brought an action and foreclosed a mortgage against the said G. K. Ryan, and that no plea of usury as a defense or counterclaim was interposed in said action to recover the principal sum out of which the claim for usury arose in this case." The case contains the following relevant facts: "That at the time of the commencement of the suit and the date of the decree in the old suit of the association against Ryan, the said Ryan had not paid any usurious interest, but that said alleged illegal and usurious interest was collected in said suit; that the bonds and mortgages sued upon by said association in the case against Ryan were not upon their faces usurious contracts, but provided, inter alia, that in no event should more than the amount borrowed, together with the interest at the rate of 8 per cent, per annum, be collected under said bonds; that Ryan, in attempting to defend in the said suit, put in an answer denying that he was indebted to the association in the amount claimed; that said answer was stricken out as frivolous, and judgment proceeded to be taken against him as by default." At the close of plaintiff's testimony, defendant's counsel moved for a nonsuit, which was refused. The ground for the motion for nonsuit was "that the record in the old case of the Southern Mutual...

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