Wild v. Crum

• Decision Date: 19 January 1922
• Docket Number: 3 Div. 519.
• Citation: 92 So. 252,207 Ala. 132
• Parties: WILD v. CRUM.
• Court: Alabama Supreme Court

92 So. 252

207 Ala. 132

WILD v. CRUM.

3 Div. 519.

Supreme Court of Alabama

January 19, 1922

Appeal from Circuit Court, Lowndes County; A. E. Gamble, Judge.

Bill by A. R. Wild against W. B. Crum to purge a transaction of usury and to redeem from mortgage foreclosure. From a decree dismissing the bill, complainant appeals. Reversed and remanded.

R. B Smythe, of Greenville, and Hill, Hill, Whiting & Thomas, of Montgomery, for appellant.

Joseph R. Bell, of Hayneville, and Powell & Hamilton, of Greenville for appellee.

SAYRE J.

Appellant filed the bill in this cause, praying to be relieved of the usury in appellee's mortgage contract and to redeem. The trial court overruled appellant's exceptions to the register's report, ruling in effect that there had been no usury, decreed foreclosure accordingly, and this appeal followed.

There were two mortgages executed by appellant to appellee. In the first transaction, dated November 28, 1906, appellant received a loan of $2,000, for which he executed 11 notes for $13.33 each, payable one on the 1st day of each succeeding month, and one for $2,013.34, payable November 1, 1907. The parties concur in their testimony that it was their mutual intention that the loan should bear interest at 8 per cent the lawful rate. In view of this testimony-which the trifling difference between the interest the papers purport to secure and that allowed by law is hardly sufficient to overcome-we hold the contract of November 28, 1906, to be free of the taint of usury. Ely v. McClung, 4 Port. 128; Van Beil v. Fordney, 79 Ala. 76. It follows that the account between the parties down to January 10, 1910, was correctly stated.

On the date last mentioned appellant paid to appellee the sum of $1,000, raised by a sale of part of the property, and executed a new mortgage on the remainder, payable in the sum of $1,100 January 1, 1911; $1,000 being the balance due on the mortgage debt of November 28, 1906. This contract, though it secured a part of the indebtedness which had formed the consideration of the mortgage of November 28, 1906 discharged the former contract and substituted another entirely new. On the undisputed facts, the concurring testimony of the parties, this new contract intended to secure the payment of interest at the rate of 10 per cent. per annum, and, since it was a new contract with new security, operating to cancel and discharge the original, the conclusion that it was obnoxious to the statute of usury is irresistible. Read v. Flaketown Graphite Co. (Ala. Sup.) 91 So. 258.

This contract was negotiated and the papers prepared by Brook appellee's agent. There does not seem to be any contention that Brook acted without authority in any respect; but, if he did, appellant adopted his work, and, for a time at least, accepted payments of interest thereon at the usurious rate. At law and in equity he...