Stephens v. Muir
| Decision Date | 12 December 1856 |
| Citation | 8 Ind. 321 |
| Parties | Stephens and Another v. Muir |
| Court | Indiana Supreme Court |
From the Decatur Circuit Court.
The decree is affirmed with 1 per cent. damages and costs.
J Ryman, J. S. Scobey and W. Cumback, for appellants.
OPINION
Bill in chancery to foreclose a mortgage, filed in March, 1853. Stephens and Murphy answered; demurrer to the answer sustained; and decree for 1,210 dollars. Stephens appeals.
The bill alleges that one Joseph Clarke was indebted to Muir in the sum of 535 dollars and 79 cents, by note under seal, dated September 24, 1841, due in twelve months, which, if not paid at maturity, was to draw 10 per cent. interest from date, till paid; and that the mortgage was given to secure the payment of this note.
It is further shown, that after the execution of the mortgage, Clarke sold the mortgaged premises to Stephens, subject to the mortgage, which it is alleged Stephens agreed with Clarke to pay. It further appears that Stephens sold to Murphy the lands embraced in the mortgage, with averment of non-payment of the note at maturity, and that no part had since been paid.
Stephens and Murphy answer (the latter by consent adopting the answer of Stephens), that the matters alleged in the bill as to the note, mortgage, etc., are true; but that Stephens agreed with Clarke to pay what was justly due on the mortgage; that there was justly due thereon only 150 dollars; that as to the residue, it was usurious; that it originated in this way, viz., that in February, 1840, Clarke being in embarrassed circumstances, applied to Muir to borrow 100 dollars for a year, for which he gave his note to Muir for 137 dollars and fifty cents, with interest at 10 per cent., in case of non-payment at maturity; that in February, 1841, Clarke borrowed 200 dollars, and gave his note to Muir for 275 dollars, on the same terms as the former note; that on the 15th of March, 1841, Clarke paid 150 dollars on the two loans; that in September, 1841, Muir and Clarke agreed upon another year's extension upon a new note for 535 dollars and 79 cents, and securing it by mortgage--which are the note and mortgage in suit.
It is further averred that the two loans--one of 100 dollars, in February, 1840, and the other of 200 dollars, in February, 1841, were the sole consideration for the note of September, 1841, now sued on; that 150 dollars being paid on these loans in March, 1841, the residue, except 150 dollars, is usurious and unconscionable. The answer is sworn to, as required by the bill.
The old practice was still in force when the bill was filed; but the demurrer filed April, 1854, conforms to the new practice--showing for cause of demurrer that the answer does not state facts sufficient to constitute a defense, in this viz., the defendants cannot take advantage of the usury, if there was...
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