Carter v. Life Insurance Co. , 122 N.C. 338 ( 1898 )

This is an action to recover double the amount of usurious interest paid by the plaintiff to the defendant. On 25 October, 1890, the plaintiff borrowed of the defendant $200, for which he gave his note at 6 per cent interest. But, to enable him to do this, he was compelled to take an endowment policy on his life in the defendant company, for which he was required to pay $2.40 per month, making his (339) monthly payments $3.40. The $200 and interest and the monthly installments on the insurance policy were all secured by deed of trust to Steel and Dalton. The plaintiff commenced to pay the monthly installments, which he continued to make up to 24 June, 1893, when they, together with subscription fee and a fine paid by plaintiff, amounted to $113.60. The plaintiff failed to pay anything on this contract after 24 June, 1893, 40 per cent being more than he could stand. The defendant let the matter rest until 12 March, 1894, when it caused the plaintiff's land to be sold by the trustees, Steel and Dalton, claiming that $209 was due at that time. The property sold for barely enough to pay the defendant the amount it claimed ($209) and the cost and expenses of the sale, which amount was paid to the defendant. This action was commenced on 20 January, 1896, which defendant contends was too late.

There appears to be no dispute as to the facts involved, and it seems to us that Miller v. Insurance Co., 118 N.C. 612, and Roberts v. InsuranceCo., ibid., 429 are decisive of the law involved in this case. Miller v.Insurance Co. decided that this was a usurious contract under which the defendant was entitled to recover no interest. Code, section 3836. Robertsv. Insurance Co. decides that the plaintiff can only recover double the interest paid within two years from the commencement of his action. Code, section 3836. The plaintiff made no payment within two years of the commencement of this action except that made by the trustees, Steel and Dalton — being the proceeds of the mortgaged property. The statute, section 3836 of The Code, does not forfeit the principal of the debt, but only the interest. The principal of this debt is admitted to be $200. This is all that was due the defendant at the sale, and anything paid him by the trustees over $200 was (340) usurious, and the plaintiff is entitled to recover double this amount (claimed to be $9), and if this is correct, judgment should be for $18.

We have not felt called upon to enter into a discussion of the law involved in this case, but have satisfied ourselves by announcing what the law is — as every question involved in this case is fully discussed in Miller's case and Roberts' case, supra, and any discussion here would be but to repeat what is there said. There are no equities involved in this case, and can be none. It is entirely statutory. There is

Error.

DOUGLAS, J., having been of counsel, did not sit on the hearing of this appeal.

Cited: Banking Co. v. Tate, ante, 317; Tayloe v. Parker, 137 N.C. 419;Riley v. Sears, 154 N.C. 517.