Tribble v. Anderson

63 Ga. 31

• Court: Supreme Court of Georgia
• Decided: February 15, 1879
• Status: Published

Opinion

Bleckley, Justice.

Mrs. Tribble applied for homestead and exemption. Anderson resisted, claiming title to the land and the mules, and a lien for rent on the crop, and also setting up a waiver of homestead by Tribble, the husband of the applicant. On these issues, the case came from the ordinary to the superior court, the parties appealing by consent. Anderson then obtained possession of the mules by a possessory warrant, Tribble proving unable to give bond and security. He also sued out a distress warrant against Tribble as his tenant, and had the same levied upon some corn, fodder, cotton-seed, a wagon and a set of harness; and he sued out a warrant to dispossess Tribble of the land as a tenant holding over. By consent, all these cases were consolidated on the appeal docket in the superior court, and it was agreed that such pleadings should be filed as would raise all the issues, and lead to their determination on the merits. The pleadings finally used were a declaration in ejectment by Anderson against Tribble to recover the land ; pleas general and special thereto by Tribble; a bill in equity by Mrs. Tribble (on her own behalf and for her minor children) against Anderson, setting up the homestead and exemption right, praying for general relief, and specially for an injunction to restrain the action of ejectment, etc.; an answer by Anderson, extending into a cross-bill, and praying for an injunction, the appointment of a receiver, etc.; and an answer by Mrs. Tribble to the cross-bill. These pleadings constituted what may be called the hopper of the consolidated case, and the whole litigation came on for trial together. Anderson claimed title to the land, the right to dispossess Tribble as his tenant holding over, a certain sum for rent in arrears, title to the mules, and a right to their present possession. Mrs. Tribble claimed a homestead in the land as the property of her husband, together with the mules, the crop and other personalty as exempt, her whole claim being under the constitution of 1868, and the statutes to carry the same into effect. Tribble claimed nothing for himself, but acted apparently in close alliance and sympathy with his wife, giving her all the aid and comfort in his power. He defended the action of ejectment on the ground of usury, and Mrs. Tribble set up the same usury in her bill. It was not disputed that Anderson held an absolute deed from Tribble, dated January 10, 1873, conveying the land, which deed was made as security for a debt; nor was it disputed that he also held the instrument dated January 10, 1876, copied in the report, in which Tribble “ waives, renounces and gives up for himself, his heirs, executors and administrators, all right and title to the same, (the land) in any manner, by homestead, exemption or otherwise,” and in which he consented to a sale of the land by Anderson in the event of his failure to pay a stipulated amount, liis then acknowledged debt to the latter, by the first day of the ensuing December. The deed was attacked as tainted with usury in the debt which it was made to secure, and it was insisted that the usury was not purged out when the subsequent instrument was executed. In the interval between these two muniments of title to-wit: on the 5th' of February, 1874, when there was no usury law in operation, Tribble, it appears, renewed his note for the original debt, and Anderson gave him a bond for titles, stipulating for a reconveyance of the laud on the payment of this note by the 25th of December, 1874, the time of its maturity. Tribble failed to pay, and the note was canceled and the bond for titles surrendered. This occurred before the re-establishment of the usury laws. Tribble then rented the land from Anderson for the year 1875, and the latter exhibits a note purporting to be for rent, bearing date December 2oth, 1874, and secured by a mortgage on the two mules. He also exhibits another note purporting to be for rent, dated January 10th, 1876. Tribble contends that neither of these notes was in fact given for rent, but that both were given for the agreed interest on the debt. Anderson seems to hold that there was no debt after the note was canceled and the bond for titles surrendered, on December 25th, 1874, until the debt was re-instated by the agreement of January 10th, 1876. He denies that the debt in question is or ever was infected with nsury. We thus see the state of the controversy as to the land: Anderson urges the deed of January, 1873, the settlement of December, 1874, the doctrine of estoppel by tenancy under him, and the final instrument of 1876 ; under which last he proceeded to sell after the homestead was applied for, and being unable to get a higher bid than he had stipulated with Tribble to make, he was himself the purchaser. On the other hand, Tribble and wife say that the deed was and is void for usury, that the debt has subsisted all the while, usury being added to usury, and no complete purging made ; that though there was the form of renting there was no real tenancy, the rent notes being a sham to conceal usury, etc. The controversy as to the mules (putting out of view the mortgage upon them, which seems not now to be urged, and the bill of sale of 1872, which is conceded to be no longer operative) is simply this: The mules were purchased by Anderson in June, 1875, at constable’s sale, made under a mortgage fi. fa. issued by a justice of the peace. Anderson contends that he hired the mules to Tribble, and exhibits the latter’s note for hire, dated January 10, 1876. It is replied that the constable's sale was void, a justice of the peace having no power to issue a mortgage fi. fa., and therefore that Tribble hired his own property, whence, it is said, the contract of hiring is a nullity. It is suggested, also, that at the bottom there was no actual hiring of the mules, but that the note given nominally for hire was in truth given for usurious interest on money.

1. It will be seen from the foregoing summary that the case tried belonged to the composite order; it was partly a legal growth and partly a concerted manufacture; it stood with one foot in'equity and the other in the law; it was compound as well as consolidated ; yet in its ultimate analysis, it turns as to the land upon usury, and as to the mules upon bailment. Touching the fact of usury or no usury the evidence was conflicting. This conflict ought to have been decided by the j ury. The court, however, relieved them, as to the homestead, from the labor and responsibility of any decision whatever, by charging that, as Mrs. Tribble had come into equity to assert the homestead right, she was bound to tender the principal and lawful interest of her husband’s debt, or she must fail. This charge was radically erroneous. In the first place, she was both in law and equity; a court of law was her first selection, and her appearance in equity was by concert and consent of all parties; no just or rightful view of her position would involve the surrender of any of her legal rights; she was in equity by arrangement with her adversary, not to abandon her legal case, but to prosecute and carry it on ; her original application for homestead was still pending, and was consolidated with several other cases in which her adversary was plaintiff; this was the vehicle upon which her freight was aboard, and she merely went into equity for a team to pull it. But, in the second place, the homestead right stands no lower in equity than it does at law. In either court it is superior to all claims whatever, except those specified in the constitution. Whether a creditor has charged usury or not, he must stand aside when the homestead right is asserted for it is a right that prevails equally against principal and lawful interest as against usury. It does not have to purchase recognition, but may demand it anywhere and everywhere. When the applicant for homestead goes into equity, it is not to avoid usury merely, but the chief object, it may be supposed, is to resist the collection of principal and interest. To grant homestead on condition of paying the real debt, would be to grant it as against the usury only. It is a wide misconception of the homestead law to require a debt to be paid or tendered before the homstead right can bo set up against it. If an absolute deed given to secure a debt be tainted with usury, the legal title remains in the debtor, and it is upon that which the homestead right attaches. The deed being void as title, is alike void at law and in eqxiity, and in neither court is the payment or the tender of anything a condition precedent to treating it as void where the mere question of title is involved. As against a deed passing title, the claim of homestead is of no avail either at law or in equity, while the title is outstanding. The court was quite mistaken in making the case turn in any degree upon the peculiar doctrines of equity, or the distinctions of forum.

2. The charge which we have just considered was alike fatal to the homestead whether there was usury or not; for if there was no usury the jury had to find against the homestead because the title was in Anderson, and if there was usury, they had to find against the homestead because the applicant did not tender principal and interest. But as the case is to be tried over, several other points are important to a future result, and ought to be determined. One of these is the question of what effect the settlement, or alleged settlement, of December, 1874, taken in connection with the instrument of January 10th, 1876, had upon the title, supposing the deed of January 10th, 1878, to have been infected. If that settlement had been left to stand, and was a real cancellation or satisfaction of the debt, it may be conceded for argument’s sake, that as there was no usury law in existence at the time, the land would thenceforth have belonged to Anderson; but in point of fact the settlement was not left to stand; the debt was re-opened after the usury laws were restored, and this was a virtual rescisión of the contract of settlement, and being so, the question would be whether the debt was purged or not purged when the re-opening took place. There is evidence on this point in the record, but what it proves we do not undertake to say. If all the usury was not purged out, the infection remained and tainted the instrument of January 10th, 1876, so that Anderson’s legal title would not be aided by that instrument. But if there was a complete purging, that instrument, as it is a renunciation of title by Tribble, with a power of sale to Anderson, would itself be a good conveyance for security of the debt, passing the legal title for that purpose into Anderson, and sufficient to hold the land even against the homestead right until the debt shall be paid. The efficiency of this instrument as a muniment of title depends entirely upon whether the debt was purged or not purged, supposing the debt to have been corrupt.

3. As to the waiver of homestead which the instrument contains, that is not needed by Anderson for his protection if the debt was untainted, or if being tainted it was purged. If he is in a situation to need it, he can take no benefit from it; for while the waiver of homestead is not a conveyance, it is enough in the nature of a quit-claim title to be subject to the general rule ordained by statute against passing any kind of title to property for a usurious purpose or as part of a usurious contract. The homestead right is a right in property, and to waive it in favor of a creditor is substantially the same thing as to convey it away — the same, certainly, in respect to putting the debtor in the power of the creditor. And it is, we apprehend, to keep the debtor out of the power of the creditor, so as to give due scope to the plea of usury if the former should at any time feel inclined to use it, that the rule against connecting title with usury has been adopted. The waiver of homestead is within the reason and spirit of the statute, because there would be little difference to the debtor and his family between allowing the usurer to acquire title to his property to secure a usurious debt, and allowing the usurer to acquire a lien upon it with a waiver of homestead for the same purpose. In either case, the property, if only of equal value with the amount of the debt, and sometimes though of much greater value, would be gone sooner or later if the debt was not paid. Perhaps we need not directly invoke the statute, either in its letter or spirit, to reach the result at which we have arrived; for the undoubted policy of the law is to discourage and repress usury ; usury is odious to the law; while homestead is favored by the law. The one is an outcast and reprobate ;• the other, a fostered institution of the state. Usurious contracts are regarded as corrupt or tainted, and the usurer is, so far, a trampler upon the very law to which he looks for protection. If he will violate the law for the purpose of gain, shall he at the same time clutch his debtor’s homestead right as security for his principal and lawful interest ?. Shall he have the same security for these when he breaks the law as other creditors have who keep the law ? Because the homestead right can be waived in a pure contract, does it follow that it can be waived in a contaminated contract ? We think not, and so rule. It is contrary to public policy to bind the homestead right as security for an usurious debtthe taint of usury affects the security and renders it void.

4. The next point is as to the effect of the so-called tenancy, and this rests upon a like principle. Estoppel is not applied to prevent inquiring into usury. If a deed will not estop surely a note for rent will not estop, nor will any contract of renting. Out of a title void for usury, and a contract of renting based thereon, no tenancy, no relation of landlord and tenant, will arise. The usury stalks like a pestilence through every form of contract, and poisons all it touches. Tenancy can no more grow out of an usurious title where both are parts of the same scheme of usury, than a man can become his own tenant and be landlord to himself. There can be no rent, and no right to rent. And the like rule holds as to personalty, in respect to title and hire.

5. It will be seen that we only declare the effect of usury, without intimating any opinion as to its presence or absence in this particular case. That is a question for the jury, and so we intend to leave it. It was, however, insisted, as matter of law, that when the statute allowed- a conventional rate of interest higher than the general rate, on condition that the contract therefor was in writing, the rate stipulated for or agreed on had to be expressed in the writing, and that to add the principal and interest together, giving a note for the aggregate, would not be a compliance with the,statute. We think otherwise. The statute merely intended to distinguish between written and parol contracts, declaring the former effectual and the latter not. The promise to pay might be so much in a round sum, provided the statutory limit as to rate was not exceeded, and if the promise and the sum were evidenced by writing the contract would be in writing. Of course, the more detailed statement of the terms of the contract would also suffice where it was the pleasure of the parties to set them out.

6. The void sale of the mules by the constable, his only warrant being a mortgage fi. fa. issued by a justice of the peace, gave no title to the purchaser. But if the owner, with a knowledge of all the facts, acquiesced in the sale and hired the mules from the purchaser, why was it not an adoption of the constable’s void act, and a ratification of the sale ? Doubtless the price paid went to the payment of the mortgage debt, and if so, the owner of the mules was benefited to that extent. Perhaps he was well satisfied with the price and with the application of the money, and for that reason cared not whether the sale was legal or illegal. The purchaser, it may be supposed, got possession of the animals from the constable, and passed that possession to the hirer. If the hirer thus acquired possession, it made a case of bailment, and the general rule holds that the bailee cannot, whilst retaining possession, dispute the bailor’s title. If he had wanted to make an issue on the legality of a constable’s sale, he ought not to have taken the position of hirer or bailee under the purchaser — I mean if he had wanted to make that issue with the purchaser. Of course, his wife, on a claim of the mules as her husband’s, and as therefore exempt, cannot make the issue if he is estopped from making it. If the hiring was only colorable and a cloak for usury, no estoppel would arise against either. We have spoken of a real, hiring, not of a mere sham.

7. It is manifest at a glance that most if not all the objections filed by Anderson to the application for homestead were not appropriate to that sort of proceeding. Disputes about title to the property, or about liens upon it, are generally not to be raised and settled in that way. But here the parties have agreed to consolidate their litigation, raise the real issues and have them tried on the merits, and they conducted the trial accordingly. The evidence had the widest range, and brought before the court and jury everything that the parties were disputing about. In so far, therefore, as the charge of the court cut off any part of the case from the jury which the consent arrangement of the parties embraced, or authorized the jury to arrive at a verdict on principles which would leave the main controversy still open, the charge was .erroneous. Certainly this was done in respect to usury in its relation to the homestead right, and were there no other error a new trial ought to have been granted for that one.

8. The withdrawal of the case temporarily from the jury, and occupying the minds of some of them with another case, then recombining the jury and proceeding to finish this case, was an improper practice, and counsel ought not to have been called on to consent to it. What the court ought not to do at all, should not be suggested by it as expedient, and then done on a consent thus obtained. Judges are, in mental habits and training, fitted somewhat for transferring the attention from one case to another, and passing to and fro between them, without confusion, but ordinary jurors, we believe, ought to cope with but one ease at a time. And this accords with the general usage of courts — so general, that no single instance to the con trary, except the present, has ever come under our observation. We know of no authority for it, and no precedent has been cited other than the practice of the learned judge in his own circuit.

Judgment reversed.