Vail v. Van Doren
| Decision Date | 18 June 1895 |
| Docket Number | 6085 |
| Citation | 63 N.W. 787,45 Neb. 450 |
| Parties | HERBERT E. VAIL, APPELLANT, v. OLIVER S. VAN DOREN, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Red Willow county. Tried below before WELTY, J.
AFFIRMED.
R. M Snavely and J. S. Phillips, for appellant:
The dating back of a promissory note does not render the transaction usurious. (
S. R Smith, contra.
The facts appear in the statement of the commissioner.
This was an action by Vail to foreclose a mortgage made by Van Doren to one G. B. Bell, to secure a note for $ 700, dated December 5, 1885, and payable five years after date, with interest at seven per cent, payable semiannually. Van Doren pleaded usury, and the court found for him on this issue allowing Vail only his principal less the interest payments which had been made by Van Doren. The plaintiff appeals.
Where usury is the defense, the burden is upon the plaintiff to show that he is a bona fide purchaser of the note. ( Wortendyke v. Meehan, 9 Neb. 221, 2 N.W. 339; Violet v. Rose, 39 Neb. 660, 58 N.W. 216, and cases there cited.) The plaintiff neither pleaded nor proved that he was a bona fide purchaser from Bell, so that question is removed from the case. It appears that Van Doren approached one J. W. Dolan, seeking a loan of money. Dolan negotiated the loan, and the evidence clearly sustains the court's finding that in so doing he acted as Bell's agent. At the time the application was made Dolan lent to Van Doren $ 200, the money either of Dolan himself or of a bank with which he was connected. Usurious interest, Van Doren testifies, was charged on this $ 200, but it may be dismissed from consideration, because the evidence shows that this was not a part of the Bell loan, and was entirely separate therefrom. About three weeks after the application was made the note and mortgage were executed and the money paid to Van Doren, Dolan, however, withholding enough therefrom to repay himself the $ 200, and also a sum equal to three per cent interest on the $ 700 for five years. The evidence shows that the parties contemplated a loan at ten per cent interest, and that the three per cent so withheld in advance was Dolan's commission. It is probable, so far that nothing in the way of usury appears. (Pierce v. Davey, 43 Neb. 45, 61 N.W. 92.) But the evidence shows that while the note was dated December 5, 1885, and made to bear interest from that date, the money was not received by Van Doren for three weeks later. The appellant contends that this was because Van Doren had not perfected title to his land, that the money was...
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...In fact, if we are to adopt the conclusions that the authorities on the subject of usury are controlling, the case of Vail v. Van Doren, 45 Neb. 450, 63 N. W. 787, would appear to be in point. In that case this court held: “When parties contract for the loan of money at the highest rate of ......
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State ex rel. Spillman v. Security State Bank of Eddyville
... ... fact, if we are to adopt the conclusion that the authorities ... on the subject of usury are controlling, the case of Vail ... v. Van Doren, 45 Neb. 450, 63 N.W. 787, would appear to ... be in point. In that case this court held: ... "When ... ...
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