Rountree v. . Brinson

3 S.E. 747, 98 N.C. 107

• Court: Supreme Court of North Carolina
• Decided: September 5, 1887
• Status: Published

Opinion

Smith, C. J.,

(after stating the case.) 1. The defence to an action upon a contract based upon a usurious consideration, must be made by setting out the facts, showing its infectious presence so that it may be seen by the Court. Brye v. Cooper, 2 Murph., 286.

If not so before, this is plainly required under The Code, which declares that the answer must contain “a statement of any new matter constituting a defence or counter claim.” § 243, par. 2.

There is no reason why the facts should not be stated with the same particularity in matters of defence as in stating the facts in the complaint out of which grows the cause of action, and the rule is explicitly laid down in Moore v. Hobbs, 79 N. C., 535, and recognized in Boyden v. Achenback, 79 N. C., 539.

The demurrer was properly sustained as to this attempted ■defence of usury.

In the amended complaint, the plaintiff sets out the original dealing by which the defendant became indebted, in which it is not alleged any usury is found, and traces the debt, transmitted in successive securities, until it assumes the form in which it appears in the first complaint, and he insists upon his right to recover the antecedent indebtedness, if usury did enter into the bond sued on. The point is well taken, and we can see no reason, because the bond as such is void, why the true and uninfected debt may not be recovered, and so are the authorities.

In Burnhesel v. Firman, 22 Wall., 170, Mr. Justice Swayxe, near the close of the opinion, says: ('It is well settled that if a security founded upon a prior one, be fatally tainted with that vice (usury), and the prior one was free from it, but given up and cancelled, and the latter one be thereafter adjudged void, the prior one will be revived, and may be enforced, as if the latter one had not been given. The cases to this effect are very numerous,” and reference is made to many at the first of page 173.

So, Comstock, C. J., delivering the opinion of the Court, uses this language: “ A note or a bond may be void for usury, but being founded on some antecedent claim or contract free from that defect, there may be a just and legal right to recover the original consideration. The note or bond may be sold, and it will be void even in the hands of an innocent purchaser. But will it be pretended that the purchaser gets absolutely nothing ? It is impossible to doubt that he ivill stand in the shoes of his vendor.” Oneida Bank v. Ontario Bank, 21 N. Y., 495.

To the same purport are other cases cited in the elaborate and carefully prepared brief of plaintiff’s counsel. Gerring v. Sitterly, 56 N. Y., 214; Patterson v. Beardsall, 64 N. Y., 294; Bussell v. Nelson, 99 N. Y., 119.

The assignment carried with the bond the debt it represented, and which retained its force as an obligation through all the changes in form it has subsequently undergone, and the plaintiff’s title to whatever sum was reasonable, seems not to have been in controversj'', as appears from recitals in the final judgment.

It must be declared there is ho error in rendering judgment for the plaintiff for the sum demanded, and interest from the 22d day of December, 1875, less the credits specified therein. Judgment affirmed.

No ei’ror. Affirmed.