Deshler v. Holmes

44 N.J. Eq. 581

Opinion

Per Curiam.

This decree affirmed, for the reasons given by the Advisory Master.

For affirmance — The Chief-Justice, Reed, Scudder, Brown, Clement, Cole, McGregor — 7.

For reversal — Depue, Dixon, Garrison, Knapp, Magie, Paterson, Whitaker — 7.

Footnotes

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Note. — If a bond or note and mortgage bear ten per ceDt. interest (the legal rate), and judgment is recovered on the bond, a decree afterwards •obtained on the mortgage will bear only six per cent., Wayman v. Cochrane, 35 Ill. 152; Guernsey Bank v. Kelley, 14 Ohio St. 367; and if the judgment bears no interest, tire decree will bear none, Heydle v. Haselhurst, 4 Bibb 19; and so as to a judgment on a note secured by a vendor’s lien, if such lien be after-wards enforced, Palmer v. Harris, 100 Ill. 276; Stricklin v. Cooper, 55 Miss. 624.

In Walker v. Penry, 2 Vern. 42, Prec, in Ch. 50, on a mortgagor’s bill to redeem a mortgage bearing eight per cent, interest,.which rate he continued to pay voluntarily after the legal rate had been reduced to six — Held, that he •could not be relieved as to the two per cent, excess, by having it credited on the principal. This was affirmed on a rehearing, 2 Vern. 78, but was doubted on a subsequent bill of review, 2 Vern. 145; and see Proctor v. Cooper, Prec. in Ch. 116; Hedworth v. Primate, Hardres 318; Rex v. Allen, T. Raym. 196; Nutting v. McCutcheon, 4 Minn. 382.

In New York Life Ins. Co. v. Manning, 3 Sandf. Ch. 58, a debtor on a mortgage bearing six per cent, interest, who for several years paid interest on his •debt at the rate of seven per cent., taking receipts thus expressed, was held not entitled to have the excess thus paid applied towards extinguishing the principal. Also, Reynolds v. Rondabush, 59 Ind. 483; Sims v. Squires, 80 Ind. 42; see Mauer v. Wilson, 16 S. C. 409.

In Story v. Kimbrough, 33 Ga. 21, two notes for usurious interest on a principal secured by a chattel mortgage were given by the defendant to the plaintiff which were paid. The mortgagee afterwards foreclosed for the principal, but-before sale the defendant gave another note for the interest for the ensuing year at a usurious rate, which being unpaid at maturity, the plaintiff issued1 execution under his foreclosure. — Held, that only legal interest was recoverable-on the decree from the time of its entry, and that defendant was entitled to-credit on the principal of the amount of the two notes he had paid'.

In Andrews v. Campbell, 36 Ohio St. 361, it was held that payments of ten percent. interest on a note, under an agreement to that effect, when such rate was illegal, are not binding on the payer, but may be recouped and credited on the principal; also, Samyn v. Phillips, 15 Ohio St. 218; Mueller v. McGregor, 28 Ohio St. 365; Bowen v. Phillips, 55 Ind. 226.

In Gordon v. Shallcross (Pa.), 4 Am. Law Reg. 309, after the satisfaction of a foreclosed mortgage, the mortgagee was held entitled to recover on- the bond-the interest accrued on the original debt between the day of sale under the-foreclosure and the actual receipt of the money on final distribution; see Mohn v. Hiesler, 6 Watts 53.

If a note bears no interest, but the maker nevertheless pays interest thereon,, by mistake, the amount is to be applied as a payment on the principal, Carr v. Robinson, 8 Bush 269.

As to what constitutes a mistake of law and a mistake of fact in computing, interest, see Baker v. Baker, 4 Dutch. 13. — Rep.