Perry v. Mabus

Supreme Court of South Carolina

Perry v. Mabus

126 S.E. 487, 135 S.C. 292, 1925 S.C. LEXIS 29

CourtSupreme Court of South Carolina

DecidedApril 3, 1925

Docket11740

StatusPublished

Cited by2 cases

This text of 126 S.E. 487 (Perry v. Mabus) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Perry v. Mabus, 126 S.E. 487, 135 S.C. 292, 1925 S.C. LEXIS 29 (S.C. 1925).

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Opinion

The opinion of the Court was delivered by Mr. Justice Fraser as follows:

“This is an action to foreclose a mortgage. The defenses set up are usury and insanity. It was tried before Hon. C. J. Ramage, Special Judge, who found for the plaintiff. The defendants appealed.

I. The defendants set up usury and insanity

The first assignment of error is that his Honor held that there was no evidence of usury. His Honor was correct. The appellant relies upon this statement to show usury:

“We paid the first $500 that was borrowed from- him. It was paid back to him before the other papers were fixed in January, and, of course, we paid him $540. He charged us interest from August to January.”

Appellant claims that the $40 was interest on $500 from August to January. It is not clear that it was interest only. The burden is on the defendants to máke it cléar that the $40 was for interest only. But suppose it. was interest only. The statute (Civil Code 1922, page 3639) provides two remedies for usurious interest received. One is a separate *298 action, and the other is a “counterclaim in any action brought to recover the principal sum.” This is not an action to recover the $500 loan. That loan of $500 “was paid back to him before the other papers were fixed.” The two loans were separate and distinct so far as the money lender and the borrower were concerned. There is no evidence of usury in this second loan. This assignment of error cannot be sustained.

II. The next assignment of error is that his Honor was in error in finding that the obligors were of sound mind. There was no evidence that Mrs. Sallie Mabus was of unsound mind. It is true she had no education, but the record shows that she was a thrifty woman, of excellent natural ability. His Honor’s finding as to Eustace Mabus is abundantly sustained by the evidence. The hearsay evidence as to the opinion of Dr. Watson was received without objection, and it is too late to object to it now.

All of the exceptions are overruled and the judgment appealed from is affirmed.

Messrs. Justices Watts and Marion concur. Mr. Chiee Justice Gary and Mr. Justice Cothran did not participate.

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The opinion of the Court was delivered by Mr. Justice Fraser as follows:

“This is an action to foreclose a mortgage. The defenses set up are usury and insanity. It was tried before Hon. C. J. Ramage, Special Judge, who found for the plaintiff. The defendants appealed.

I. The defendants set up usury and insanity

The first assignment of error is that his Honor held that there was no evidence of usury. His Honor was correct. The appellant relies upon this statement to show usury:

“We paid the first $500 that was borrowed from- him. It was paid back to him before the other papers were fixed in January, and, of course, we paid him $540. He charged us interest from August to January.”

Appellant claims that the $40 was interest on $500 from August to January. It is not clear that it was interest only. The burden is on the defendants to máke it cléar that the $40 was for interest only. But suppose it. was interest only. The statute (Civil Code 1922, page 3639) provides two remedies for usurious interest received. One is a separate *298 action, and the other is a “counterclaim in any action brought to recover the principal sum.” This is not an action to recover the $500 loan. That loan of $500 “was paid back to him before the other papers were fixed.” The two loans were separate and distinct so far as the money lender and the borrower were concerned. There is no evidence of usury in this second loan. This assignment of error cannot be sustained.

II. The next assignment of error is that his Honor was in error in finding that the obligors were of sound mind. There was no evidence that Mrs. Sallie Mabus was of unsound mind. It is true she had no education, but the record shows that she was a thrifty woman, of excellent natural ability. His Honor’s finding as to Eustace Mabus is abundantly sustained by the evidence. The hearsay evidence as to the opinion of Dr. Watson was received without objection, and it is too late to object to it now.

All of the exceptions are overruled and the judgment appealed from is affirmed.

Messrs. Justices Watts and Marion concur. Mr. Chiee Justice Gary and Mr. Justice Cothran did not participate.

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Bluebook (online)

126 S.E. 487, 135 S.C. 292, 1925 S.C. LEXIS 29, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-mabus-sc-1925.

Opinion

I. The defendants set up usury and insanity

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