C. D. Kenny Co. v. Hinton Hotel Co.

Supreme Court of North Carolina

C. D. Kenny Co. v. Hinton Hotel Co.

180 S.E. 697, 208 N.C. 295, 1935 N.C. LEXIS 391

CourtSupreme Court of North Carolina

DecidedJune 26, 1935

StatusPublished

Cited by5 cases

This text of 180 S.E. 697 (C. D. Kenny Co. v. Hinton Hotel Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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C. D. Kenny Co. v. Hinton Hotel Co., 180 S.E. 697, 208 N.C. 295, 1935 N.C. LEXIS 391 (N.C. 1935).

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Opinion

CONNOR, J.

The plaintiff and the receivers of the defendant Hinton Hotel Company, on their appeal to this Court, contend that there is error in the judgment of the Superior Court in this action for that in the accounting by which the amount now due to J. N. Bryant by the Hinton Hotel Company was ascertained, Judge Grady has allowed interest at the rate of six per cent per annum on the sum of money loaned by the said J. N. Bryant to the said Hinton Hotel Company, notwithstanding his finding of fact that the said J. N. Bryant know *298 ingly charged and has knowingly received from the said Hinton Hotel Company interest on Ms debt at a rate in excess of six per cent per annum. They contend that under the statute J. N. Eryant has forfeited all interest on his debt, and that the receivers of the Hinton Hotel Company are entitled to a credit on said debt of twice the amount of interest paid thereon by said hotel company. C. S., 2306.

If this was an action in which J. N. Bryant was seeking to recover of the defendant Hinton Hotel Company the amount due on his bond, these contentions would be sustained. In such case, he would be liable for the statutory penalties for usury. This, however, is an action in which the plaintiffs are seeking equitable relief. They seek to enjoin J. N. Bryant and George H. Howell, trustee, from foreclosing the deed of trust by which the bond, which they allege is tainted with usury, is secured, and pray for an accounting to ascertain the amount due on the bond. They must, therefor, abide by the maxim that “He who seeks equity must do equity.” This maxim has been uniformly applied in this jurisdiction in actions in which parties seek equitable relief from a usurious transaction. In order that such parties may invoke the equitable jurisdiction of the court, they must consent, at least, that the creditor recover of his debtor the principal of his debt, with interest at the rate prescribed by law. See Thomason v. Swenson, 207 N. C., 519, 177 S. E., 647, and cases cited in support of the decision in that case. The contention that there was error in allowing interest at six per cent per annum on the amount loaned by I. N. Bryant to the defendant Hinton Hotel Company cannot be sustained.

It does not appear from the record in this appeal that the receivers of the Hinton Hotel Company were authorized by the court to appeal from its judgment to this Court. In the absence of such authority, express or implied, their appeal is dismissed. See In re Trust Company, 206 N. C., 251, 173 S. E., 340.

There is no error in the judgment. It is

Affirmed.

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CONNOR, J.

The plaintiff and the receivers of the defendant Hinton Hotel Company, on their appeal to this Court, contend that there is error in the judgment of the Superior Court in this action for that in the accounting by which the amount now due to J. N. Bryant by the Hinton Hotel Company was ascertained, Judge Grady has allowed interest at the rate of six per cent per annum on the sum of money loaned by the said J. N. Bryant to the said Hinton Hotel Company, notwithstanding his finding of fact that the said J. N. Bryant know *298 ingly charged and has knowingly received from the said Hinton Hotel Company interest on Ms debt at a rate in excess of six per cent per annum. They contend that under the statute J. N. Eryant has forfeited all interest on his debt, and that the receivers of the Hinton Hotel Company are entitled to a credit on said debt of twice the amount of interest paid thereon by said hotel company. C. S., 2306.

If this was an action in which J. N. Bryant was seeking to recover of the defendant Hinton Hotel Company the amount due on his bond, these contentions would be sustained. In such case, he would be liable for the statutory penalties for usury. This, however, is an action in which the plaintiffs are seeking equitable relief. They seek to enjoin J. N. Bryant and George H. Howell, trustee, from foreclosing the deed of trust by which the bond, which they allege is tainted with usury, is secured, and pray for an accounting to ascertain the amount due on the bond. They must, therefor, abide by the maxim that “He who seeks equity must do equity.” This maxim has been uniformly applied in this jurisdiction in actions in which parties seek equitable relief from a usurious transaction. In order that such parties may invoke the equitable jurisdiction of the court, they must consent, at least, that the creditor recover of his debtor the principal of his debt, with interest at the rate prescribed by law. See Thomason v. Swenson, 207 N. C., 519, 177 S. E., 647, and cases cited in support of the decision in that case. The contention that there was error in allowing interest at six per cent per annum on the amount loaned by I. N. Bryant to the defendant Hinton Hotel Company cannot be sustained.

It does not appear from the record in this appeal that the receivers of the Hinton Hotel Company were authorized by the court to appeal from its judgment to this Court. In the absence of such authority, express or implied, their appeal is dismissed. See In re Trust Company, 206 N. C., 251, 173 S. E., 340.

There is no error in the judgment. It is

Affirmed.

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180 S.E. 697, 208 N.C. 295, 1935 N.C. LEXIS 391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/c-d-kenny-co-v-hinton-hotel-co-nc-1935.

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