Seawell v. Hendricks
| Decision Date | 04 September 1896 |
| Citation | 46 P. 557,4 Okla. 435,1896 OK 90 |
| Parties | SEAWELL v. HENDRICKS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Where a statute provides that a person who takes, receives retains, or contracts for any higher rate of interest than 12 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received, retained, or contracted for, and it is subsequently provided by the legislature that this section ··is hereby repealed," and another section of the Statutes of 1893 provides generally that ··the repeal of any statute by the legislative assembly shall not have the effect to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 purpose of sustaining any proper action for the enforcement of such forfeiture or liability," the right of the plaintiff to recover usurious interest, provided under 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, section 2697 remaining unrepealed.
2. Where an absolute deed to land is given, accompanied simultaneously by bond or agreement of defeasance, the latter may, upon agreement and consideration between the parties thereto, be surrendered and canceled, so as to vest the estate unconditionally in the grantee by force of the first deed, providing the transaction is conducted with fairness both as between the parties and as against the creditors of the mortgagor.
Error to district court, Cleveland county; before Justice Henry W Scott.
Action by W. H. Seawell against T. W. Hendricks. From a judgment for defendant, plaintiff brings error. Reversed.
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 $4,000 alleged to have been paid by the plaintiff to the defendant above the rate of 12 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 $3,000 from the defendant 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 $180, due January 7, 1892; one for $1,180, due January 7, 1893; and one for $2,780, due January 7, 1893,--and, upon the delivery of said promissory notes, the sum of $3,000 was paid by the defendant to plaintiff, and no other or greater sum. These promissory notes included the sum of $3,000, and the sum of $1,140 which was interest on the said $3,000, computed at the rate of 18 per cent. per annum; and the further sum of $3,000 was thereafter, upon May 27, 1891, borrowed by plaintiff from defendant, making in all the sum of $6,000, for which the plaintiff executed and delivered his promissory notes to the defendant; and afterwards, on November 13, 1895, the plaintiff borrowed from the defendant the further sum of $60, and on September 5, 1895, the still further amount of $80. Upon all these said several sums the plaintiff promised to pay to the defendant interest at the rate of 18 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 the 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 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 18 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 $49 more, amounting in the aggregate to the sum of $5,922.80. It was further alleged in the petition that ··on or about the 6th day of December, A. D. 1894, this plaintiff made a verbal agreement with said 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-tenth 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 twenty-six and twenty-seven in block six aforesaid. And it was further agreed that seven-eighths of said $8,500, to wit, $7,437.50, was to be a cash payment upon 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, canceled, 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...
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