M'Alister v. Jerman

32 Miss. 142

• Court: Mississippi Supreme Court
• Decided: October 15, 1856
• Status: Published

Opinion

Fisher, J.,

delivered the opinion of the court.

The complainant filed this bill on the chancery side of the Circuit Court of Tippah county, for the purpose of enjoining the defendants below from selling a certain tract of land which the complainant had purchased from one Johnson, and upon which Johnson had executed a deed of trust to secure the defendants in the payment of the sum of $ 101, being a loan of money to Johnson.

The facts are these: the debt being due, the parties entered into an agreement by which Johnson was to pay for forbearance, a rate of interest exceeding eight per cent, per annum. Such a contract has been decided by this court to be in violation of the statute on the subject. Newman v. Williams, 29 Miss. R. When Jerman purchased the landfro.m Johnson, it was agreed that he should pay the balance due on this debt. This must of course be understood to mean merely the balance legally due; and Jerman, aside from any agreement on the subject, could make any defence •which Johnson could make against the sale of the land.

The court decreed that the debtors should collect only the balance of the principal due, and applied the sums paid by way of illegal interest, as credits on the note. This decree conforms to the principles settled in the case of Newman v. Williams, above cited.

Decree affirmed.