Broach v. Kelly , 71 Ga. 698 ( 1883 )

Jackson, Chief Justice.

‘Complaint for land was brought, by defendant in error against the plaintiff in error. The title of the plaintiff in ejectment was a deed from the defendant in ejectment, .and the defence was that the deed was given to secure a debt which was usurious. The jury found a verdict for the plaintiff, but gave the defendant six months time to pay the note before the judgment was executed. The defendant below made a motion for a new trial, which was overruled, and the judgment overruling that motion is the error assigned.

1. One ground of the motion is that the verdict is contrary to law. We think that it is. We know of no law which authorizes such a verdict in ejectment or complaint ffor land, where the only issue was title or no title in the 'plaintiff, and where that issue turned on a single question —was there usury or not in the deed '5 If there was, the' verdict should have been for the defendant; if there was not, it should have been for the plaintiff, with no six months’ stay of execution and permission to retain the land, if the note was paid at the expiration of or within' that time. No equitable plea was filed, and no pleadings of any sort were made whereby such a verdict could have been legally returned. Defendant was hurt by it, because it shows that the issue of usury was not decided, bm that the verdict was a sort of compromise, and did not cover and decide the issue he made.

2. The decided weight of the testimony bears against the. verdict. There is no sufficient evidence of a lonafidts sale of the bonds to the defendant or to anybody else to get the money for the defendant. On the contrary, if Mr. Plant is to bo credited and his book be correct, the plaintiff got the money from his bank, where he had it all the time, checked it out and paid it to defendant, and the real transaction was a loan of that money. The bond affair was a mere device to cover the exaction of usurious interest for the loan of money plaintiff had on deposit at Plant’s bank; and if more than ten per' cent was put in the note for that loan, no matter how covered up, it was usurious. The law, at the date of this transaction, -5th of February, 1873, was that the taking and reserving, or contracting to take or reserve, either directly or indirectly, a greater sum for the use of money than the lawful interest, constitutes usury; and all titles to property which form any part of a contract so affected and tainted are void. Code of Clark, Cobb & Erwin, §§2023,2024. Until the 19th of February, 1873, when an act was passed allowing unlimited interest by contract, none beyond ten per cent was legal by contract, but all beyond was usury. See acts of 1873, and 56 Ga., 210-212. It seems to us clear from the evidence, and we do not know that it rs disputed, that more than ten per cent was exacted; and if in reality there was no sale of the bonds, but they were merely used to cipher up the amount of the note given for the loan, or to cover up the exaction of usury, then, the consideration of the deed being usurious, it passed no title, and the title remained in the defendant below. The taxes exacted, the calculation on the face, or rather pasted above the note, all go to show usury, if there was no Iona fide sale of bonds; and no sufficient, evidence of .'that fact.is in this record. See further, 2 Peters, 527 ; 9 Ib. 359 ; 6 Monroe, 158; Doug. R., 736; 3 Camp., 375; 1 Cowp., 112.

3. The interrogatories of Blount were improperly admitted in evidence. They were taken in complaint on the note ; not in this suit for the land.

At the time of the trial, Blount was alive and accessible. Had he been dead or beyond seas—without the jurisdiction of the court—then the interrogatories would have been admissible. Code, §3782. That section read's that “ the testimony of a witness, since deceased, ór disqualified, or inaccessible for any cause, given under oath in a former trial, upon substantially the same issue and between substantially the Same parties, may be proved by any one who heard it, and who professes to remember the substance of the entire testimony as to the particular matter about which he testifies.” Of course his written answers to interrogatories would therefore, by the spirit of the section, be admitted in case of death or inaccessibility; but we know of no law admitting them when the witness is alive and in an adjacent county of the state at the time of the trial.

4. The defendant below held the affirmative of the issue that the deed was usurious, made by his plea, and was entitled to open and conclude. 24 Ga., 211; Code, §3758; 56 Ga., §351; Ocean Steamship Co. vs. Williams, 69 Ga., 251.

In so far as the rulings of the court, the charges and refusals of requests to charge, conflict with the views above written, they are erroneous; and for the reasons above stated the verdict should have been set aside, and a new trial granted.

Judgment reversed,