Taylor v. Copeland

• Decision Date: 10 October 1938
• Docket Number: 33212
• Citation: 181 So. 742,183 Miss. 85
• Court: Mississippi Supreme Court
• Parties: TAYLOR v. COPELAND

181 So. 742

183 Miss. 85

TAYLOR v. COPELAND

No. 33212

Supreme Court of Mississippi

October 10, 1938

(Division B.)

1 USURY.

Where tenant executed a note to landlord with 8 per cent, interest which was secured by a deed of trust on tenant's crops to be grown and other personalty, landlord was not entitled to collect 8 per cent, interest from date of note and deed of trust on all furnish items, regardless of when they were advanced, as against contention that interest so calculated would not violate the 20 per cent, provision of the statute forfeiting principal and interest (Code 1930, sec. 1946).

2 USURY.

A contract to pay the maximum rate of interest allowed by statute, calculated from the date of the contract, where the consideration therefor is to be advanced later during its life, if and when needed, violates the usury statute forfeiting principal and interest (Code 1930, sec. 1946).

3 USURY.

In determining whether a contract to pay maximum rate of interest allowed by law violates the usury statute forfeiting principal and interest, where the consideration for the contract is to be advanced later during its life, if and when needed, interest begins to run on each advance of the consideration from date of the advance.

4. USURY.

Where farm tenant executed note to landlord at 8 per cent, interest per annum and executed deed of trust on crops to be grown and on other personalty to secure the note and $850 to be advanced to tenant, and tenant was charged 8 per cent, straight interest on items furnished him by landlord regardless of time when each item was furnished, so that the total interest charged amounted to about 25 per cent, per annum, tenant was entitled to recover all principal and interest paid to landlord, under usury statute (Code 1930, sec. 1946).

ON SUGGESTION OF ERROR. (Division B. Oct. 10, 1938.)

APPEAL AND ERROR. The Supreme Court will not consider a point first made on suggestion of error and which should have been covered in original argument and briefs, where case was determined in court below and on appeal solely on other issues previously raised.

Division B

May 30, 1938

APPEAL from the chancery court of Washington county, HON. J. L. WILLIAMS, Chancellor.

Bill in chancery by Less Taylor against J. W. Copeland to recover the amount of plaintiff's furnish account of $ 2,279.91 on ground that defendant charged and collected more than 20 per cent. interest per annum on the items of the account. From a decree dismissing plaintiff's bill, plaintiff appeals. Reversed, and judgment entered.

On suggestion of error. Suggestion overruled.

Reversed and judgment here. Suggestion of error overruled.

Percy Bell, of Greenville, for appellant.

There is no question as to the basic fact before the, court; there, are no disputed questions of law; Section 1946 of the code provides that if a rate of interest is contracted for and received directly or indirectly greater than 20% the principal and all interest charges are forfeited and any amount paid on such contract may be recovered by suit. No other law is invoked. But we wish to direct attention to the constitutional provisions that each citizen is entitled to equal protection of the law and that property may not be taken without due process of law. Certainly the usury law is for black as well as white and Taylor's money has been taken in violation of that law.

I have lived in the Delta, all of my life. I have known a number of cases of imposition but I have never before seen one more flagrant than this in which the charges were less justifiable and in which the interest as shown by the books of the appellee himself amounted to 26%. Of course, if items like the March 17th item were entered at the proper dates it would increase the rate charged but taking Dr. Copeland's account as he himself gave it he stands before the court a self convicted usurer. There are few greater temptations to cupidity than dealing with helpless subjected individuals but in this case it has overreached itself and defected itself very thoroughly.

Don D. Townsend, of Greenville, for appellee.

Appellant's bill having failed for discovery, and in addition to the fact that appellee was compelled to answer and the lower court having tried this cause on its merits, and appellant having failed to make out a proper case and having failed to overcome appellee's sworn answer, he is now in no position to complain of the finding of fact by the lower court against him, especially since these facts are fully substantiated by the record.

Barry v. Mattocks, 125 So. 554, 156 Miss. 424; Cole v. Standard Life Ins. Co., 154 So. 353, 170 Miss. 330; Silver Creek Co. v. Hutchens, 151 So. 559, 168 Miss. 757; Dowling v. Whites Lbr. & Supply Co., 154 So. 703, 170 Miss. 267; Nash v. Stanley, 152 So. 294, 168 Miss. 691; Clark v. Dorsett, 128 So. 79, 157 Miss. 365.

The finding of the Chancellor on facts on conflicting evidence is binding on the Supreme Court.

Langston v. Farmer, 176 Miss. 820, 170 So. 223.

Appellant contends that this cause should be reversed because of usury, yet appellant failed to prove usury on the trial of this cause.

The Chancellor chose to believe appellee's testimony and disbelieved the appellant, and this court will not reverse this cause because the Chancellor decided who was testifying truthfully.

Langston v. Farmer, 176 Miss. 820, 170 So. 223.

It is obvious that appellant lets his enthusiasm get him away from the facts as developed by the record in this cause, and unfortunately for appellant the record does not substantiate the complaints raised by appellant in this appeal. The Chancellor found as a matter of fact in this case that appellee did not contract for, charge or collect, either directly or indirectly, interest in excess of the legal rates provided for in Section 1946, Code of 1930.

Argued orally by Percy Bell, for appellant, and by Don D. Townsend, for appellee.

Anderson, J., McGehee, J., delivered the opinion of the court on suggestion of error.

OPINION

Anderson, J.

Appellant, a negro farm tenant of appellee during the year 1936, filed his bill in the chancery court of Washington county against appellee to recover the amount of his furnish account of $ 2279.91, advanced him by appellee during that year and by him paid to appellee, upon the ground that appellee, in violation of Section 1946, Code of 1930, charged and collected more than twenty per cent interest per annum on the items of said account. There was a trial on the bill, answer and proofs resulting in a decree dismissing appellant's bill. From that decree appellant prosecutes this appeal.

There is practically no conflict in the material evidence. Appellant for the year 1936 rented one hundred and five acres of land from appellee for which he agreed to pay him, and did pay him, $ 12.50 an acre. On the 15th of February, 1936 appellant executed to appellee his note for $ 2500.00 due October 15th of that year, with eight per cent interest per annum from date until paid. To secure...