Klinck v. Price

4 W. Va. 4

• Court: West Virginia Supreme Court
• Decided: January 15, 1870
• Status: Published

Opinion

Maxwell, J.

This was a bill filed in the circuit court of "Wood county, by Price, to set aside a conveyance made by him to Klinck, for a tract of 458 acres of land, upon three grounds: First, because the conveyance was obtained by means of false and fraudulent misrepresentations and without adequate consideration. Second, because the conveyance was intended to be a mere mortgage to secure the payment of money due. And third, because the whole contract is usurious and therefore void.

The court below was of the opinion that the conveyance was a mere mortgage to secure the payment of money loaned at a greater rate of interest than allowed by law, and decreed accordingly, and from that decree the defendant below has appealed.

The appellant insists here that the decree is erroneous, because the conveyance was absolute and not a mere mortgage to secure the payment of money loaned, and because the contract was not usurious.

Without referring to the evidence in detail, it is clear the proofs in the record show that the conveyance was made to secure the payment of money to Klinck, and is therefore, in effect, a mortgage. Ross vs. Norvell, 1 Wash., 14; Thompson vs. Davenport, Idem, 125; Robertson vs. Campbell, 2 Call, 421; Chapman’s adm’r vs. Turner, 1 Call, 280; King vs. Newman, 2 Munford, 40; Dabney vs. Green, 4 H. & M. 101; Pennington vs. Hautry, 4 Munford, 140; Bird vs. Wilkinson, 4 Leigh, 266.

Although the conveyance was made in the State of New York, its effect is to be determined by the law of this State. The United States vs. Jonah Crosby, 7 Cranch, 115. But as the contract for the loan of money to secure the payment of which the conveyance was executed, was made in the State of New York, as to its nature, construction and validity, it is to be governed by the laws of that State. What the law of New York is, does not appear in the record of the cause, and no court of this State can know judicially what it is. It does not, therefore, appear from the record that the contract was usurious according to the laws of that State. - It follows then that, so far as the decree of the court below held the conveyance to be a mortgage, there is no error in it, but so far as it holds the contract for the loan of money to be usurious* it is erroneous, and ought to be reversed with costs, and the decree entered here for the payment of the sum of.4,580 dollars, with interest thereon at the rate of six per centum per annum from the 17th day of June, 1859.

The other judges concurred.

Decree reversed, and proper decree entered here.