Wood v. Essary
| Decision Date | 09 November 1936 |
| Docket Number | 32382 |
| Citation | 170 So. 543,177 Miss. 134 |
| Court | Mississippi Supreme Court |
| Parties | Wood et ux. v. ESSARY et al |
Suggestion Of Error Overruled December 7, 1936.
APPEAL from chancery court of Alcorn county, HON. JAS. A. FINLEY Chancellor.
Suit between B. F. Wood and wife and J. A. Essary and others. From an adverse decree, B. F. Wood and wife appeal. Reversed and rendered.
Reversed.
G. C. Mooreland, of Corinth, and Jas. A. Cunningham, of Booneville, for appellants.
We submit that Section 1946 of the Annotated Code of Mississippi of 1930 applied to the facts of this case shows the charging and contracting to receive of about eighty per cent interest on this loan of one thousand eighty dollars and forty-six cents by the appellee, J. A. Essary.
Miller v. Ellis, 18 So. 95; 27 R. C. L. 211, sec. 12; Rogers v. Rivers, 100 So. 385.
It has been long settled in this state that interest at the highest contract rate cannot be reserved in advance; that to do so renders the contract usurious.
Bank v. Nolan, 7 How. 508; Hyde v. Finley, 26 Miss. 468; Polkinghorne v. Hendricks, 61 Miss. 366; Hiller v. Ellis, 72 Miss. 701, 18 So. 95, 41 L.R.A. 707; Jefferson Standard Life Ins. Co. v. Davis, 163 So. 506.
The testimony of appellant Wood shows definitely and clearly and unequivocally that he borrowed one thousand eighty dollars and forty-six cents from appellee Essary and that Essary charged him and had it put in a note and trust deed, one thousand two hundred eighty dollars and forty-six cents, and that regardless of what you name the transaction, whether it be a loan, a charity dispensation, or a juggling revelation, makes no difference whatever, but as "The rose by any other name would smell just as sweet," so would this usurious evasion of the statute by whatever name we wish to call it, come under the stern condemnation of the statute just the same, regardless of what it was named. The essence of the matter is the transaction and the usury contracted for and charged, directly or indirectly.
W. C. Sweat, of Corinth, for appellees.
This case presents a. disputed question of facts which was decided by the chancellor in favor of Essary and there is no question from this record but what there was certainly sufficient evidence on the part of Essary before the chancellor to sustain his findings and this court will not disturb that finding of fact by the chancellor.
This court has frequently held that a decree of a chancellor on controverted facts is analogous to the verdict of the jury.
Davis v. Richards, 45 Miss. 499; Apple. v. Ganong, 47 Miss. 189; Harrington v. Allen, 48 Miss. 492; Wilson v. Beauchamp, 50 Miss. 44.
This court has further held in many cases that a decree of the chancellor should not be disturbed on the facts unless it is manifestly wrong.
Herd v. Cottrell, 100 Miss. 42, 56 So. 277; Lott v. Hull, 104 Miss. 308, 61 So. 421; Grace v. Pierce, 127 Miss. 83, 90 So. 590; Scott v. Perry, 140 Miss. 452, 106 So. 12; Seller Motor Co. v. Champion Spark Plug Co., 150 Miss. 473, 116 So. 833.
The issues of fact being controverted, either directly or by circumstances, the findings thereon of the chancellor, who heard and observed the witnesses, will not be disturbed.
Babcock v. Holloway, 140 Miss. 120, 104 So. 696, 105 So. 739; Austin v. Page, 169 So. 671.
The appellee Essary had a perfect right to buy this property at any price he could buy it for and to resell it to Wood at any price that might be agreed upon.
The record shows without contradiction that Wood originally owed the bank five thousand dollars which was secured by mortgage on these same lands; that the lands were sold out under the trust deed and purchased by the bank. He was credited with three thousand dollars on this note. Under the law they would have had a perfect right to agree that the appellee would purchase this property from the bank and that Wood would execute his note for the full amount, five thousand dollars, and secure it by mortgage on the property. It would have been a perfectly valid contract. They did not do that, however, they agreed that Wood would pay one thousand two hundred dollars to Essary and there could certainly have been nothing illegal or invalid about that contract. They could have agreed for Wood to have paid Essary a bonus of two hundred dollars to get Essary to purchase the property from the bank for Wood and this would have been a perfectly legal and valid transaction.
66 C. J. 187, sec. 184; Smythe v. Allen, 67 Miss. 146; Floyd v. Candler, 148. Miss 200, 114 So. 344.
Before the appellant could recover on his cross-bill it was incumbent upon him to show clearly that this was a usurious contract. He could not content himself by proving his case by the preponderance of the evidence; this being an attempt on the appellee's part to forfeit the entire principal on account of a greater rate of interest than twenty per cent being contracted for as provided by the last clause of section 1946 of the Code of 1930, it was incumbent upon the appellant to prove his contention clearly and with certainty, and this he did not do; in fact the contrary was shown. This part of the statute is highly penal and provides for a forfeiture of the principal. This court has held that it cannot be invoked except where it is clear and certain from the particular facts of the case that more than twenty per cent per annum was either contracted for or received. The proof in this case on the part of the appellant does not rise to that degree of certainty which is required to work a forfeiture of the principal.
Morgan v. King, 128. Miss 401, 91 So 30. Byrd v. Newcomb Mill & Lbr. Co., 118 Miss. 179, 79 So. 100.
The appellant's own witness, the president of the bank, showed by his own evidence in transferring all this property except the land to Essary and in suggesting that the deed to the lands should be made to Essary, that it was the understanding of the parties at the time that it was a sale, of the property to, Essary and not a lending of money by Essary to Wood.
Argued orally by Jas. A. Cunningham, for appellants, and by W. C. Sweat, for appellees.
The facts construed in the light of the findings by the chancellor are as follows:
Appellants Wood and wife; owned and occupied a farm which had been mortgaged to the Corinth Bank & Trust Company for five thousand dollars. In 1932 this mortgage was foreclosed by the bank and the land was bought in by the bank, or by an agent for its use, for three thousand dollars, which amount was credited on the mortgage note. Wood and wife thereafter continued to remain in the occupancy of the property, paying therefor a small annual rental. In October, 1934, Mr. Wood, having learned that the bank desired to sell the land for one thousand dollars, approached the manager of the bank and inquired whether the...
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