Poulk v. Cairo Banking Co. , 158 Ga. 338 ( 1924 )

Hill, J.

(After stating the foregoing facts.) The Civil Code (1910), § 3438, provided that “Any person, company, or corporation violating the provisions of section 3436 shall forfeit the excess of interest so charged or taken, or contracted to be reserved, charged or taken.” And § 3442 provided that “All titles to property made as a part of an usurious contract, or to evade the laws against usury, are void.” The act of 1916 (Acts 1916, p. 48) repealed the sections above quoted; and in lieu thereof the legislature enacted:

(1) “Any person, company, or corporation, violating tbe provisions of section 3436 of the Code of 1910 shall forfeit the entire interest so charged or taken, or contracted to be reserved, charged or taken.”

(2) “That no further penalty or forfeiture shall be occasioned, suffered, or allowed further than as stipulated in section 1 hereof (the entire interest).” The contract in the present case was entered into after the passage of the act of 1916; and even if the contract is usurious, it will not void the security deed since the act of 1916. The only penalty incurred under that act is to “forfeit the entire interest so charged or taken, or contracted to be reserved, charged, or taken.” And, “no further penalty or forfeiture shall be occasioned, suffered or allowed,” etc. This being so, the deed was not void on account of the usury charged or taken, and the plaintiff was not entitled to have the deed canceled and set aside as void on account of its being tainted with usury. “He who would have equity must do equity and give effect to all equitable rights in the other party respecting the subject-matter of the suit.” Civil Code (1910), § 4521. “Before a borrower who has executed such a deed can have affirmative equitable relief, such as injunction to prevent exercise of the power of sale by the grantee in such security deed, he must pay or tender to such grantee the principal and lawful interest due to him.” Liles v. Bank of Camden County, 151 Ga. 483 (107 S. E. 490), and cit.; Brown v. Roughton, 155 Ga. 828 (118 S. E. 557.).

Nor would the present action lie to recover interest where usury was charged or collected, it appearing from the petition, and the date of filing it, that the suit was not brought within one year from the date of the payment thereof. Civil Code (1910), § 3441; Camp Lumber Co. v. Citizens Bank, 142 Ga. 84 (2) (82 S. E. 492). Furthermore, the plaintiff would have an adequate remedy at law to recover the interest, if it was not barred, without resorting to a court of equity. See, in this connection, Liles v. Bank of Camden County, supra; Tennille Banking Co. v. Quinn, 156 Ga. 159 (118 S. E. 644).

The court did not err in sustaining the demurrer and in dismissing the petition.

Judgment affirmed.

All the Justices concur. Bussell, C. J., concurs in the result.