Hightower v. Coalson , 151 Ala. 147 ( 1907 )

SIMPSON, J.

The bill in this case was filed by the appellant against the appellee, seeking relief against a judgment on the ground that the judgment was rendered by confession under a poAver of attorney, which Avas embodied in tlie note, authorizing judgment to be confessed by an attorney if the note was not paid at maturity. A demurrer to the Bill was sustained by the chancellor, and the question presented by the appeal is whether a court of equity can grant relief in such a case.

The general principle is that if a party has permitted a judgment to be taken against him, without interposing the defense of usury, he cannot invoke the powers of a. court of equity for relief. — 29 Am. & Eng. Ency. Law (2d Ed.) p. 557; Jones v. Watkins, 1 Stew. 81; Jones & Spence v. Kirksey, 10 Ala. 579; Mallory, et al. v. Matlock, 10 Ala. 595; McCollum v. Prewitt, 37 Ala. 573. This principles has been declared applicable to judgment by confession; but an examination of the cases reveals the fact that those were cases in which a party had been brought, into court by regular process and had confessed judgment. The better opinion is that where a party embodies in his note a. power of attorney to con-' fess judgment, and the judgment is confessed, without other notice to him, while in other respects the judgment is as valid as any other judgment, yet as the power of attorney is a part of the usurious contract, and as it would be a convenient method of evading entirely the usury laws, a court of equity will open the judgment, and purge the transaction of usury. — I Pom. Eq. Jur. (3d Ed.) p. 461, § 278; Cook v. Jones, 1 Cow. (N. Y.) 727; Thompson v. Berry, 3 Johns. Ch. (N. Y.) 359, 399, 400; Twogood & Elliott v. Pence, 22 Iowa, 543; 544; Mullen v. Russell, 46 Iowa 386; Kendig v. Marble, 55 Iowa, 386, 7 N. W. 630; Bell v. Fergus, 55 Ark. 536, 539, 18 S. W. 931; Moses v. McDivitt, 88 N. Y. 62, 68; Fanning v. Dunham, 5 Johns. Ch. (N. Y.) 122, 9 Am. Dec. 283, 287-295; 29 Am. & Eng. Ency. Law (2d Ed.) p. 558.

It results that the chancellor errer in sustaining the demurrer to the bill, and a judgment will be here renderecl reversing said decee of the chancery court and overruling the demurrer.

Reversed and rendered.

Tyson, C. J., and Haralson and Denson, JJ., concur.