Glover v. Equitable Mortg. Co.

Fifth Circuit

Glover v. Equitable Mortg. Co.

87 F. 518, 31 C.C.A. 105, 1898 U.S. App. LEXIS 2008

Court of Appeals for the Fifth Circuit·Decided May 17, 1898·No. No. 669·Published

Opinion

PARDEE, Circuit Judge,

after stating the facts, delivered the opinion oí the court.

The circuit court found that the loan in question “was made in the city of Vicksburg, and therefore a Mississippi contract, and not intended as a mere cover for usury, and must be construed under the laws of Mississippi, and is, therefore, not. usurious”; and thereupon entered a decree dismissing the complainants’ bill. In this finding we concur. The loan company was located in Mississippi, and the property mortgaged was in the same state. The agreement to make the loan on the security offered — (he meeting of minds — was in the state of Mississippi, and it is clear from the evidence that the parties intended that it should be a Mississippi contract. Mr. A. Buchanan was a mere solicitor, and, while paid by the loan company, appears to have acted in the interest of and for both parties. He certainly was no such agent of the loan company as was authorized to agree to any of the terms of the contract. The fact that the note [520]*520and deed of trust dated at Vicksburg, Miss., were executed in Memphis, Tenn., is a circumstance fully explained by the evidence. The loan is not usurious under the laws of Mississippi, because the rate of interest agreed upon was permitted by the laws of that state. The provision in the deed of trust as to the payment of solicitor’s fees on default relates to a contingency which in no way affects the rate of interest. Spain v. Hamilton’s Adm’r, 1 Wall. 624, 626; Meacham v. Pinson, 60 Miss. 217, 226. The provision with reference to the right of the loan company to declare the unpaid principal due in case of taxation by the state of the deed of trust or debt is also based on a .contingency, and, as we construe the contract, it warranted, in no event, any higher rate of interest than the 10 per cent, stipulated. See Spain v. Hamilton’s Adm’r, supra; Dugan v. Lewis (Tex. Sup.) 14 S. W. 1024; Williams’ Heirs v. Douglass (La.) 17 South. 805; Gillmour v. Ford (Tex. Sup.) 19 S. W. 442. The decree of the circuit court is affirmed.

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PARDEE, Circuit Judge,

after stating the facts, delivered the opinion oí the court.

The circuit court found that the loan in question “was made in the city of Vicksburg, and therefore a Mississippi contract, and not intended as a mere cover for usury, and must be construed under the laws of Mississippi, and is, therefore, not. usurious”; and thereupon entered a decree dismissing the complainants’ bill. In this finding we concur. The loan company was located in Mississippi, and the property mortgaged was in the same state. The agreement to make the loan on the security offered — (he meeting of minds — was in the state of Mississippi, and it is clear from the evidence that the parties intended that it should be a Mississippi contract. Mr. A. Buchanan was a mere solicitor, and, while paid by the loan company, appears to have acted in the interest of and for both parties. He certainly was no such agent of the loan company as was authorized to agree to any of the terms of the contract. The fact that the note [520]*520and deed of trust dated at Vicksburg, Miss., were executed in Memphis, Tenn., is a circumstance fully explained by the evidence. The loan is not usurious under the laws of Mississippi, because the rate of interest agreed upon was permitted by the laws of that state. The provision in the deed of trust as to the payment of solicitor’s fees on default relates to a contingency which in no way affects the rate of interest. Spain v. Hamilton’s Adm’r, 1 Wall. 624, 626; Meacham v. Pinson, 60 Miss. 217, 226. The provision with reference to the right of the loan company to declare the unpaid principal due in case of taxation by the state of the deed of trust or debt is also based on a .contingency, and, as we construe the contract, it warranted, in no event, any higher rate of interest than the 10 per cent, stipulated. See Spain v. Hamilton’s Adm’r, supra; Dugan v. Lewis (Tex. Sup.) 14 S. W. 1024; Williams’ Heirs v. Douglass (La.) 17 South. 805; Gillmour v. Ford (Tex. Sup.) 19 S. W. 442. The decree of the circuit court is affirmed.

Glover v. Equitable Mortg. Co., 87 F. 518, 31 C.C.A. 105, 1898 U.S. App. LEXIS 2008 (5th Cir. 1898).

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