Ward v. . Sugg

18 S.E. 717, 113 N.C. 489

• Court: Supreme Court of North Carolina
• Decided: September 5, 1893
• Status: Published

Opinions

Upon the pleadings the following issues were submitted to the jury:

"1. Was the $400 note executed for an amount agreed to be paid over and above the debts, and for an usurious charge for the use of the money? Answer: `Yes.'

"2. Is the defendant Harrington the bona fide owner of the $400 note, due 1 January, 1893, and did he acquire the same before maturity in due course of business for value and without notice of any facts impeaching its validity? Answer: `Yes.'"

Evidence was introduced by both parties tending to show the (490) correctness of their allegations, and his Honor charged the jury fully upon the matter. There was no exception to the charge or to the testimony as admitted. Upon the verdict the plaintiffs moved for judgment in their favor, and the defendant moved for judgment for the amount of said $400 note, etc. The court refused to give judgment for the plaintiffs, and gave judgment in favor of defendant Harrington, and the plaintiffs excepted, assigning as error the refusal of the court to give judgment for plaintiffs, and the giving the judgment for defendants. Plaintiffs appealed. The jury found that the $400 note in suit was wholly given for an usurious charge for use of money, and that the present holder acquired it before maturity for value and without notice. The question, whether it is valid in his hands is not an open one in this State. Such note is held to be void into whatever hands it may pass. Ruffin v. Armstrong, 9 N.C. 411;Collier v. Nevill, 14 N.C. 30. Such was also the law in England until it was, in some respects, modified by the Act of 58 George III, and is still the law in New York and other States, except where modified by statute. Randolph on Commercial Paper, sec. 525; 3 Parson Con. (5 Ed.), 117; Powellv. Waters; 8 Cowen 669; Wilkie v. Roosefelt, 3 John Cas., 206; Solomons v.Jones, 5 Am. Dec. 538; Oneida v. Ontario, 21 N.Y. 495, cited by Smith, C.J., in Rountree v. Brinson, 98 N.C. 107; Callanan v. Shaw, 24, Iowa, 441.

When the statute makes a note void it is void into whosoever hands it may come, but when the statute merely declares it illegal the note is good in the hands of an innocent holder. Glenn v. Bank, 70 N.C. 191,206. Hence it was argued strenuously that the authorities above cited were good under our former statute, which made the contract (491) void, but that the present statute merely makes the contract illegal. It does not seem to us. The former statute (Rev. Code, ch. 114; Rev. Stat., ch. 117) denounced the contract as void as to the whole debt, principal and interest. The present statute (The Code, sec. 3836) makes it void, not as to principal, but as to the interest only. It provides that "the taking, receiving, reserving or changing a rate of interest greater than he is allowed . . . shall be deemed a forfeiture of the entire interest . . . which has been agreed to be paid," with a further provision that, if such interest has been paid, double the amount can be recovered back by the debtor. The only difference between the two acts is that formerly the whole note was forfeited and of no avail, and now only the stipulation as to the interest is ipso facto deemed forfeited and void. But the point has already been adjudicated by this Court.

In two cases this Court — and by most eminent judges — has expressly held that the words, "deemed a forfeiture," in the Act of 1876-7 (now The Code, sec. 3836) makes void the agreement as to interest. If any attention is to be paid to the doctrine of stare decisis, the precedents in our own Court do not leave this open to debate.

In Bank v. Lineberger, 83 N.C. 454 (on page 458), Ashe, J., quotes this section in full, and says: "The purpose and effect of this statute were not only to make void all agreements for usurious interest, but to give a right of action to recover back double the amount after it has been paid." Dillard, J., in Moore v. Woodward, 83 N.C. 531 (on page 535), says: "They (the notes there sued on) are both wholly for illegal interest, if the allegations of the answer be true, and, if so, then the sentence of the law is that they are void;" and further says: "The device of taking a distinct bond and mortgage for the interest does not take the case out of the operation of the statute." The opinions of such judges speaking for a court, constituted as the bench then was, are surely entitled to be considered the law in this State until (492) changed by legislation. And in Glenn v. Bank, 70 N.C. 191 (bottom of page 205), Rodman, J., says: "It is admitted law" that "notes vitiated by an usurious or gaming consideration cannot be enforced in the most innocent hands, but are always and under all circumstancesvoid."

In 1 Daniel Neg. Inst., sec. 198, it is stated that, where the statute provides that "in an action brought on a contract for payment of money it shall appear that unlawful interest has been taken, the plaintiff shall forfeit threefold the amount of the unlawful interest so taken, it was held to apply to the innocent indorsee of a note, who received it in due course of trade; and, as a general rule, all contracts founded on considerations which embrace an act which the law prohibits under a penalty are void," citing Kendall v. Robertson, 12 Cush., 156; Woods v. Armstrong, 54 Ala. 150. In Kendall v. Robertson, the Massachusetts law had undergone a change similar to ours, and Shaw, C. J., says: "The former law extended the entire forfeiture to any holder of the note, though an innocent indorsee. The natural conclusion is, in the absence of express words changing the operation of the law, that it was the intention of the Legislature to extend such partial forfeiture in like manner, and attach it as before to the note, although held by an innocent indorsee without notice. In both cases the intention of the Legislature appears to have been the same, to suppress a mode of lending regarded as dangerous and injurious to society, by attainting [attaining] the contract, and attaching the penal consequence to the contract itself, whenever set up as a proof of a debt." And at last term of this Court (Moore v. Beaman, 112 N.C. 558), it is said: "The contract, usury being pleaded, is simply a loan of money, which, in law, bore no interest."

Our own decisions upon our own statute should govern, even though a court of another jurisdiction upon a somewhat similar statute (493) had ruled differently. But in fact the case relied on to that effect (Oates v. Bank, 100 U.S. 239), merely holds that the contract, being not void in toto, but only as to the interest, "being legal in part, and vicious in part, the former will support a contract of indorsement." But here the note is solely for usury and, being wholly vicious, the case cited is authority against its validity in the hands of the assignee.

The note for the usurious interest being in the hands of an assignee, he and not the maker must suffer. The law regards the maker not as in paridelicto with the payee but as the victim of an oppression which the law has denounced and prohibits under penalty. Bank v. Lutterloh, 81 N.C. 144. If, by passing the note off before maturity and for value, the indorsee may recover on it, the statute is useless, as the protection intended and the penalty and prohibition are alike rendered nugatory. The victim would have no recourse but to suffer in silence. The usury would be collected in spite of the law which had declared the "entire interest forfeited" ab initio, by the fact of "charging or reserving" it. On the other hand, the innocent indorsee has his recourse upon the payee who has indorsed the note to him (Daniel on Neg. Inst., sec. 807), a recourse which would more surely protect him, being against the party who has money to loan, not to borrow. At any rate, the fact that the indorsee's sole remedy, as to the interest, is against the payee and indorser, not against the maker, will cause such lenders to be more chary of shouldering off upon innocent parties the collection of their usurious contracts.

The only case in our Reports that seems to mitigate against the otherwise uniform tenor of our decisions on this subject is Coor v. Spicer,65 N.C. 401, which held that a mortgage given to secure a usurious bond might be enforced in the hands of an innocent purchaser for value. The case recognizes the general rule, but takes mortgages out of it upon the supposed wording of the statute. Rev. Code, ch. 50, sec. 5 (now The Code, sec. 1549). Aside from the fact that this is (494) held expressly otherwise in the latter case of Moore v. Woodward,83 N.C. 531, an examination of section 1549 will show that Coor v.Spicer was a palpable inadvertence. The statute cited (The Code, sec. 1549) in fact does not purport to protect the innocent holder of a mortgage note which is tainted with usury, but the "purchaser of the estate or property" at sale under the mortgage, who buys without notice of the usurious taint in the debt secured. It would be a fraud for the mortgagor to stand by and let him purchase without giving him notice, but the maker can give no notice usually to the assignee of the note. There is a broad distinction which runs through all the cases everywhere between contracts upon an illegal consideration as to which, the parties being in pari delicto, the courts will aid neither party, but will protect the note in the hands of a holder for value without notice, and a contract which, in whole or in part, is declared void or forfeited in its inception which can acquire no validity by being passed on to other hands. Hendersonv. Shannon, 12 N.C. 147; Glenn v. Bank, supra. As to usurious contracts, the law regards the maker, not as in pari delicto, but as acting "in chains" (1 Story Eq. Juris., sec. 302), and to permit his contract, which is deemed exacted under duress, to come under the general rule in favor of innocent holders for value of commercial paper, would be to nullify the protecting statute. The recourse of the holder is against the payee and indorser, who is more likely by far to be able to respond than the maker.

The statute makes the "taking, receiving, reserving or charging usury, `when knowingly done,' i.e., intentionally done, and not by a mere error of calculation, a forfeiture (not merely forfeitable) of the entire interest which the note carries with it, `or which has been agreed to be paid thereon.'" The note in this case falls exactly within the evil denounced in the last clause. It is a written promise to pay the (495) usury reserved or charged on the note, and such charging or reserving is ipso facto a forfeiture which attaches either by the taking, receiving, reserving or charging, as the lawmakers evidently intended to prevent and head off all casuistry for which this class of lawbreakers have, in all times, been specially noted, and to carry out the legislative intent of bona fide protecting the public, not nominally, but in fact, from evasions of this law. But if in truth the forfeiture was limited to the "knowingly receiving," the holder of this note certainly knows now, and doubtless did before suit brought, that this note was given for usury "agreed to be paid," and his receiving it would, eo instanti, work a forfeiture. Besides, if the maker should have voluntarily paid this note, the receiver of such payment knowing it was for usury, the statute gives the person, "by whom it was paid, or his legal representative," an action to recover back twice the amount. Cui bono, then, shall the debtor be compelled by law to pay the usurious note, when, instantly, he can recover back double the sum of the party to whom he pays it, as a punishment for knowingly receiving it. Such multiplicity of actions was not tolerated under the old practice, and certainly will not be under the present simpler and more practical system of procedure.

Bank v. Lutterloh, 81 N.C. was decided under the Act of 1866, and, to cure the defect in that act, the wording of the present statute is made explicit and gives the action to recover back. Under the Act of 1866 there was no forfeiture, as now, but simply interest could not be collected. While the "charging, reserving," etc., is now a forfeiture of the contract as to all interest ab initio, the recovery of double the sum paid is necessarily from the party to whom it is paid, for the language is "may recover back" double the sum paid, which can only be from the party receiving the money.

With the policy of the lawmaking power the courts have (496) nothing to do further than as it may throw light upon the meaning of the statute by considering the evil to be remedied. That is thus considered by Taylor, C. J., in Ruffin v. Armstrong, 9 N.C. 411, 416: "It is not less important now than it was then to restrain the power of amassing wealth without industry, and to prevent those who possess money from sitting idle and fattening on the toil of others. It is not less important to prevent those who desire profit from their money without hazard from receiving larger gains than those who employ it in undertakings attended with risk, calculated to encourage industry and to multiply the sources of public prosperity. Nor is it less important to facilitate the means of procuring money on reasonable terms, and thereby to render the lending of it more extensively beneficial."

In a matter so capable of oppression as the lending of money, the Legislature has deemed it wise to regulate the limit of what is a reasonable exaction for its use, since all interest is the creation of statute. Beaman v. Moore, supra. As to lenders upon a lawful rate of interest, the Legislature has looked upon them with a favorable eye and of late years has raised the limit from six to eight per cent. But there is nothing in the action of the Legislature, nor in the circumstances of the day, which indicates that this is a propitious time to relax the restrictions placed heretofore upon the illegal exactions of those who would use their money contrary to law, and yet call upon the law to aid them, directly or indirectly, to secure their unlawful gains.

Error.