Tolman v. Union Casualty & Surety Co. , 90 Mo. App. 274 ( 1901 )

GOODE, J.

We have no doubt that' the agreement between Tolman and Andrews was for the purpose of making and securing a usurious loan. Andrews swears to this and he is not contradicted unless the instrument itself contradicts him. We think it corroborates him and was nothing more than a shift or ruse to evade the statutes against usury — one of the thousand protean forms which such evasions assume. The proviso that Tolman might collect the salary and apply the same to the liquidation of the obligations due from Andrews to him, hardly permits any other interpretation. If this is true, it was, of course, void from the first. Fidelity Loan Guar. Co. v. Baker, 54 Mo. App. 79; Voorhis v. Staed, 63 Mo. App. 370; Davis v. Akers, 73 Mo. App. 531.

The courts have too often denounced such contrivances for it to be necessary to descant on the subject.

Respondent insists that an assignment of wages is not a pledge or chattel mortgage within the meaning of the statute declaring liens on personal property, given by pledge or mortgage to secure usurious debts, invalid. R. S. 1899, sec. 7310. His position, which he cites cases to support, is that it is a defeasible assignment of a chose in action. But that is merely another name for a chattel mortgage. The cases cited do not support him, as they merely hold it is not such a mortgage on personal property as need be recorded. If a chose in action can be assigned by way of sale, it can likewise be assigned by way of mortgage, which is nothing more nor less than a defeasible sale. Whatever can be sold, can also be mortgaged. Lawrence v. McKenzie, 58 Ia. 440; Jones v. Webster, 48 Ala. 112; Dorsey v. Hall, 76 Neb. 465; Kimball v. Satley, 55 Vt. 285. If respondent’s position were correct, he would have no title to the salary in question, because the instrument relied on could not pass it. Mortgages of wages, or assignments in the nature of mortgages, when there was a present subsisting contract out of which the wages were expected to arise, have been sustained. Tripp v. Brownell, 12 Cushing 376; Low v. Pew, 106 Mass., 347.

We deem it unnecessary to go into the question whether such instruments are valid if not usurious; for we are clear the present one is tainted with usury and void by force of the statutes.

The judgment is reversed.

All concur.