Seawell v. Hendricks

• Decision Date: 04 September 1896
• Citation: 4 Okla. 435,1896 OK 90,46 P. 557
• Court: Oklahoma Supreme Court
• Parties: W. H. SEAWELL v. T. W. HENDRICKS.

1896 OK 90

46 P. 557

4 Okla. 435

W. H. SEAWELL v. T. W. HENDRICKS.

Supreme Court of Oklahoma

Decided: September 4, 1896

Error from the District Court of Cleveland County.

STATEMENT OF FACTS.

This action for the recovery of usurious interest, was begun on the 31st day of January, 1895, by the plaintiff in error, in the district court of Cleveland county, against the defendant in error, T. W. Hendricks, to recover the sum of four thousand dollars alleged to have been paid by the plaintiff to the defendant above the rate of twelve per cent per annum upon promissory notes made by the plaintiff to the defendant.

An amended petition having been filed by leave on May 4, 1895, the case came on to be heard on the 29th day of June, 1895, upon a demurrer thereto, upon the ground that the petition did not contain facts sufficient to constitute a cause of action, which demurrer was by the court sustained, and to which ruling of the court the plaintiff at the time excepted; and the plaintiff not electing to further plead in the case, final judgment was thereupon rendered by the court against the plaintiff, dismissing the case at the costs of plaintiff, to which decision and judgment of the court the plaintiff at the time excepted.

The amended petition alleges in substance that plaintiff borrowed three thousand dollars from plaintiff on the 7th day of November, 1890, and as evidence of this transaction the plaintiff executed and delivered to the defendant three promissory notes of said date: namely, one for the sum of one hundred and eighty dollars, due January 7, 1892; one for one thousand, one hundred and eighty dollars, due January 7, 1893; and one for two thousand, seven hundred and eighty dollars, due January 7, 1893, and upon the delivery of said promissory notes the sum of three thousand dollars was paid by the defendant to plaintiff, and no other or greater sum. These promissory notes included the sum of three thousand dollars and the sum of eleven hundred and forty dollars, which was interest on the said three thousand dollars, computed at the rate of eighteen per cent. per annum, and the further sum of three thousand dollars was thereafter, upon May 27, 1891, borrowed by plaintiff from defendant, making in all the sum of six thousand dollars, for which the plaintiff executed and delivered his promissory notes to the defendant, and that afterward, on November 13, 1895, the plaintiff borrowed from the defendant the further sum of sixty dollars, and on September 5, 1895, the still further amount of eighty dollars.

Upon all these said several sums the plaintiff promised to pay to the defendant interest at the rate of eighteen per cent. per annum. The petition further alleged that, on November 7, 1890, the plaintiff and his wife executed to defendant an absolute warranty deed of conveyance to lots 6 and 7 in block 5, and lots 26 and 27 in block 6, in the town of Norman, this Territory, as a security for said loan.

At the same time and as a part of the same transaction it was agreed between the plaintiff and defendant, by a separate agreement in writing, that "upon payment of above described notes he will execute or cause to be executed a warranty deed transferring the above described property back to W. H. Seawell, his heirs, or to any person whom he may designate."

And that afterwards, at the time of making the subsequent loans, it was agreed between the plaintiff and the defendant that the warranty deed should also stand as a security for each and all of the various sums of money loaned by the defendant to the plaintiff. The amended petition further sets forth, that in pursuance of plaintiff's agreement to pay interest on all of the said sums of money at the rate of eighteen per cent. per annum, the plaintiff did pay as interest to the defendant, various sums of money, amounting in all to the sum of $ 5,873.80, in cash, and his note for forty-nine dollars more, amounting it, the aggregate to the sum of $ 5,922.80.

It is further alleged in the petition, that:

"On or about the 6th day of December, A. D., 1894, this plaintiff made a verbal agreement with defendant and three other persons, by which all of said parties agreed to form a joint stock company in the ownership, operation and management of the said opera house property, by which agreement said property was valued, and was to be put in by said plaintiff at the sum of $ 8,500, and this plaintiff was to have and retain a share in said property of one-eighth, said defendant was to have a like share of one-eighth interest therein, and each of said other persons was to have a share of one-fourth interest therein. That in pursuance to said agreement, and before the same was reduced to writing, but with the supposition that it would be fully consummated, said defendant deeded and conveyed to this plaintiff one undivided one-eighth interest in said real estate and opera house property, and all of said lots 26 and 27 in block 6 aforesaid; and it was further agreed that seven-eighths of said $ 8,500, to-wit, $ 7,437.50, was to be a cash payment of said notes, executed by plaintiff to defendant, with interest thereon at eighteen per cent. per annum, and said notes were then delivered up as paid, and said agreement of defeasance was, on the same day, cancelled and satisfaction acknowledged on the margin of the record thereof in the said office of the register of deeds.

"That thereafter said agreement, so far as the third parties were concerned, fell through, and that thereupon, and on or about the first day of January, A. D. 1895, the said defendant claimed the right to the ownership and title in said seven-eighths undivided interest in said opera house property at said valuation of $ 7,437.50, the agreed price at which defendant and said third parties were to take the said seven-eighths undivided interest therein. The defendant since that time has claimed absolute ownership in fee simple to said opera house property, being lots 6 and 7 in block 5, aforesaid, and still claims such ownership and title.

"The plaintiff here concedes that said defendant shall be taken and held to be the owner of said seven-eighths undivided interest in said opera house, that same shall be taken and held to be a cash payment upon said borrowed money and interest thereon."

Plaintiff prayed judgment for four thousand dollars, the amount of money paid by the plaintiff to defendant over and above the said sum of $ 6,140, and legal interest thereon at twelve per cent. per annum, with interest upon said four thousand dollars from the 6th day of December, 1894.

Syllabus

¶0 1. USURY--Penalty--Recovery of. Under a statute providing that a person who takes, receives, retains or contracts for any higher rate of interest than twelve per cent. per annum, shall forfeit all the interest so taken, received, retained or contracted for, and it is subsequently provided by the legislature that this section "is hereby repealed," and another section of the Statutes of 1893 provides generally, that "the repeal of any statute by the legislative assembly shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purposes of sustaining any proper action for the enforcement of such forfeiture or liability," the right of the plaintiff to recover usurious interest provided trader the former section is still complete, and it is not necessary that his right of recovering such usurious interest should be expressly reserved in the repealing act. The plaintiff's right to recover the forfeiture of usurious interest from the defendant is fully provided for, in the general law of the Territory, § 2697, remaining unrepealed.

2. REAL ESTATE--Conveyance--Defeasance. Where an absolute deed to land is given, accompanied simultaneously by bond or agreement of defeasance, the latter may, upon...