Hill v. Eldred

By the Court, Crockett, J.:

The assignment by the defendant of the certificates of purchase, by way of security, operated as an equitable mortgage on the interest in the land which he acquired under the certificates. It is averred in the complaint and not denied by the answer, that the defendant entered and yet remains in possession, under and by virtue of the certificates; nor is it claimed in the answer that he has any other title. The Court below properly adjudged that the plaintiff had an equitable lien on the land to secure the defendant’s indebtedness to her, nor did the Court err in holding that the interest paid by the plaintiff and her assignor Shilliger to the State, in order to prevent a forfeiture of the defendant’s title to the land, became a portion of the mortgage debt.

But there was no agreement in writing that the money so paid should bear the same rate of interest as the original debt; and in the absence of a written stipulation, specifying a greater rate, our statute provides that interest shall be computed at the rate specified in the statute. The Court therefore erred in allowing interest on the money paid to the State at a rate exceeding ten per cent, per annum.

There was also error in directing that from the time of entering the judgment up to the sale, interest should be computed on the mortgaged debt, at the rates stiuplated in the notes. The second section of the Act of March 30, 1868, then in force, provided that “whatever may be the rate of interest agreed upon, no judgment or decree in any Court of this State shall draw interest at a rate to exceed seven per cent, per annum." (Statutes 1867-8, p. 553.)

Judgment affirmed, except as to the rate of interest, and as to that the judgment is reversed without costs, and cause remanded with an order to the Court below to modify the judgment in accordance with this opinion. Remittitur forthwith.

Neither Mr. Justice Rhodes nor Mr. Justice Niles expressed an opinion.