Williams v. Forman , 158 Ga. 89 ( 1924 )

Hill, J.

1. The court did not err in overruling the demurrer to the petition as amended.

2. “Where the lender of money neither takes nor contracts to take anything beyond lawful interest, the loan is not rendered usurious by what the borrower does in procuring the loan and using its proceeds. Thus that the borrower contracts with one engaged in the intermediary business of procuring loans, to pay him out of the loan for his services, and does so pay him, will hot infect the loan, the lender having no interest in such intermediary business or its proceeds. . . By using intermediaries as channels of transmission for papers, relying upon their inspection of property and .examination of titles, made at the borrower’s instance, and forwarding the money through them also at his instance, the lender does' not constitute them his agents to make the loan, and is not chargeable with the consequences of dealings between them and the borrower, whether those dealings be public or private, known or unknown. . . It is lawful to contract for interest on interest overdue, and for payment by the debtor of reasonable attorneys’ fees on sums, both principal and interest, which have to be collected by suit.” Merck v. American Freehold Land Mortgage Co., 79 Ga. 213 (7 S. E. 265). See Bellerby v. Goodwyn, 112 Ga. 306 (37 S. E. 376); 39 Cyc. 982; McCall v. Herring, 118 Ga. 522(3) (45 S. E. 442).

3. Where a borrower of money, by the express terms of a written instrument, made a certain law firm his agent to borrow certain sums of money, which resulted in a loan to the borrower, and there was nothing in the transaction between the lender and the agent of the borrower to abrogate or modify the contract or change the agent of the borrower into an agent of the lender, such agency continued throughout the transaction. Peabody v. Fletcher, 150 Ga. 468 (104 S. E. 448).

No. 3857. April 19, 1924.

4. The ruling made in the foregoing headnote does not violate the general principle that “agency is a question of fact and may be established by proof of circumstances, apparent relations, and the conduct of the parties.” Peabody v. Fletcher, supra.

5. In a proceeding to set aside and cancel a sheriff’s deed made to a purchaser of land at a tax sale, because of collusion on the part of the defendant in fl. fa., who had previously executed a security deed to the lender for money borrowed, and the purchaser at the sheriff’s sale, and also because the levy was excessive, where it appeared that the tax fi. fa. for $46.23 was levied upon 100 acres of land worth $400 or $500, which was capable of subdivision so that a smaller portion thereof could be sold for a sufficient amount to satisfy the tax fl. fa., under the facts of the case the levy was illegal and void as being excessive, and the sale was consequently void. Stark v. Cummings, 127 Ga. 107 (56 S. E. 130).

6. In such a proceeding to cancel a sheriff’s deed to a purchaser of land by virtue of a sale under a tax fl. fa., where the sheriff has no interest in the case, he is not a necessary party. Ashley v. Cook, 128 Ga. 836(d), 841 (58 S. E. 640). See Bell v. Blake, 16 Ga. 119(4), 136.

7. The case of Williams v. Forman, 18 Ga. App. 242 (89 S. E. 459), is different in its facts from the present case. It does not appear from that case, as reported, that the written application for loan was passed upon by the court, in which it was expressly agreed that Whipple & McKenzie, were the agents of Williams, and not of Forman.

8. The court did not err in directing the verdict, and in overruling the motion for new trial. Judgment affirmed.

All the Justices concur. Clifford E. Hay, for plaintiffs in error. Titus & Delete and Whipple & McKenzie, contra.