Whitlock v. Cohn

80 S.W. 141, 72 Ark. 83, 1904 Ark. LEXIS 131

• Court: Supreme Court of Arkansas
• Decided: January 2, 1904
• Status: Published

Opinions

Bunn, C. J.

The appellant, B. C. Whitlock, a citizen of Warren, Illinois, through his agent, Dr. C. D. Play, of the city of Hot Springs, Arkansas, on the nth of September, 1882, loaned Henry Cohn and Charlotte Cohn the sum of $3,000, taking their joint and several promissory note for the same, a copy of which is as follows, towit:

“Hot Springs, Ark., September 11, 1882.

“Five years after date, for value received, we promise to pay to the order of Benjamin C. Whitlock the' sum of three thousand dollars with interest at the rate of ten per cent, per annum from date until paid. Said interest payable quarterly, and in case of default in the payment of said interest for any quarter of said period then the whole of this note to become due and payable. This note is secured by a certain deed of trust of even date herewith. Interest and principal payable at Warren, Illinois.”

The deed of trust referred to in said note was executed by Henry and Charlotte Cohn to James G. Allen, as trustee, on the lot in controversy, the same being then claimed by the said Charlotte Cohn.

The principal and controlling questions in this case are, first, as to the title of Charlotte Cohn to the lot, and, second, as to the usurious character of the transaction of the loan.

Prior to the execution of the deed of trust and note aforesaid, and before the United States government had taken any effective steps to settle questions arising between claimants by occupancy and the government concerning the Hot Springs reservation, W. H. Gaines, holding, for himself and the Beldings, occupant claims on several lots, among them that in controversy, namely, lot 7, in block 130, leased the lot in controversy to I-Ienry Cohn, and he subsequently transferred this lease to his .wife, Charlotte Cohn, and when, sometime afterwards, the United States government had appointed a commissioner to settle these claims, Charlotte Cohn presented her claim to him, not as a tenant of Gaines, but as the owner of the occupant rights, the United States commissioner awarded her the privilege of purchasing the lot at the stipulated price, which she then paid, and received the patent from the government. She thus held when she executed the deed of trust and note referred to above, no further steps having been taken up to that time to controvert her title thus determined, although other claimants were not barred of their rights to do so.

Some time afterwards Gaines and others instituted suit in the district federal court, setting up the facts against Charlotte Cohn, controverting her title thus acquired. This suit was appealed to the supreme court of the United States, and there decided against Charlotte Cohn, and in favor of Gaines. Whit-lock was not made a party to this suit, and was, of course, not absolutely precluded by that proceeding. But the correctness of that decision is not questioned in this suit nor elsewhere by Whitlock, at least with any show of reason. The mortgage or deed of trust, it appears to us, was on property to which the said Charlotte had no title. But it is contended that by paying the interest on said note as it fell due the Beldings in some way obligated ■ themselves to pay off -said deed of trust, and were estopped from contesting plaintiff’s right to enforce his mortgage security. The mere payment of the interest by the Beldings, and acquiescence for the time in the status quo of the parties until the rights of the parties could be finally settled, worked no estoppel against the Beldings, and created no obligation on their part to continue to pay on the mortgage debt until the same should be settled. Such an obligation was without consideration. The Beldings were claimants of the property, and afterwards successfully maintained this claim before the proper tribunal. They could not be deprived of the fruits of their litigation in this way. There is no disputing the fact that they' are now the real owners of the lot. The contention, it appears to us, is settled. Whether or not the debt secured by the deed of trust is usurious, requires further notice. There is nothing in the evidence going to show that the note, under the Arkansas laws, is usurious. The commissions charged by Bell were unknown to Whitlock. He was not Whitlock’s agent, and the 3 per cent, charged by him as commissions seems to have been a matter independent of the interest, for which Whitlock was in nowise responsible.

It is contended, further, that the contract was and is an Illinois contract, since the principal and interest is made payable in that state, and that in that state contracts for more than 7 per cent, per annum are usurious and void as to the whole of the interest. Where the intention of the parties is not otherwise more directly and definitely expressed in the contract, nor can.be otherwise inferred, the place of payment will determine the law with reference to which parties have contracted; but parties will not be presumed to have contracted with reference to a law which will have the effect of annulling their contract for illegality in its very making, where another intention can be gathered, unless it be found that they were seeking in some way to avoid the force of the law, as in case of usury, for instance. The contract of the parties would be valid on its face under the laws of Arkansas, but not under the laws of Illinois. The presumption is against the contention that the parties contracted with reference to the laws of Illinois. -

The whole question is fully and satisfactorily discussed in 22 Am. & Eng. Enc. Law, 1329, and in the cases there cited.

There is no usury in the contract, and Whitlock was entitled to judgment against the Cohns on the note, except that, if it be shown that Charlotte signed the same as a mere security for her husband, and not for the benefit of herself or her property, no personal judgment should be against her. The evidence is conflicting on this point, and it is not clearly shown that she is a mere security. In so far the decree will be reversed, and decree entered on the note for Whitlock against the Cohns, but as to the Beldings the same will be affirmed as to the title to the lot.