Bailey v. . Inman

31 S.E.2d 769, 224 N.C. 571, 1944 N.C. LEXIS 436

• Court: Supreme Court of North Carolina
• Decided: November 1, 1944
• Status: Published

Opinion

WiNBOENE, J.

Plaintiff’s challenge to the correctness of the judgment of the Superior Court fails for these reasons:

(1) The contract of sale and purchase alleged to be usurious clearly states that the balance of $700.00 of the purchase price is payable in installments of $12.00 every 28 days until the full sum of $700.00 be paid — interest to run “at the rate of 6% per annum.” While there is a breakdown and spread of the twelve dollar payments into principal and interest, there is nothing in the contract to show that it was the intention to take or to charge a greater rate of interest than the legal rate of six per cent per annum. To constitute a usurious transaction, corrupt intent to take more than the legal rate of interest is an essential element. Doster v. English, 152 N. C., 339, 67 S. E., 754; Riley v. Sears, 154 N. C., 509, 70 S. E., 997; Monk v. Goldstein, 172 N. C., 516, 90 S. E., 519.

(2) But if it be conceded that the contract of sale and purchase be susceptible to the interpretation that usurious interest was contemplated, this is an equitable proceeding for specific performance of a contract to convey land, and the record and evidence fail to show that plaintiff has paid or offered to pay the balance of principal with interest at the legal rate. While plaintiff here contends that he has paid the $700.00 balance of principal, he admits in his testimony that he has paid'only $95.00 as interest and that he still owes “some more.” Indeed, in arriving at the net sum for which judgment is prayed in the complaint, plaintiff adds the amount of alleged forfeited interest and the amount of statutory penalty for usury, and deducts “a balance of $149.00 due the defendants.”

“The principle is well settled by numerous decisions of this Court that where a debtor seeks the aid of a court of equity on the ground that his debt is tainted with usury, he may have the usurious element, if any, eliminated from his debt only upon his paying the principal of his debt with interest at the legal rate. In such case he is not entitled to the benefit of the statutory penalties for usury.” Connor, J., in Smith v. Bryant, 209 N. C., 213, 183 S. E., 276. See also Waters v. Garris, 188 N. C., 305, 124 S. E., 334; Miller v. Dunn, 188 N. C., 397, 124 S. E., 746; Jonas v. Mortgage Co., 205 N. C., 89, 170 S. E., 127; Mortgage Co. v. Wilson, 205 N. C., 493, 171 S. E., 783; Kenny v. Hotel Co., 208 N. C., 295, 180 S. E., 697; Buchanan v. Mortgage Co., 213 N. C., 247, 195 S. E., 787.

No argument is stated, nor authority cited in support of other assignment. Hence, same is deemed abandoned. Rule 28, Rules of Practice in Supreme Court, 221 N. C., 544, at 562.

The judgment below is

Affirmed.