Rozier v. Evans

Lewis, J.

This was a suit by Evans against the administrator of Burnet, to obtain a judgment on a promissory note, with a special lien on realty conveyed by deed of the deceased to secure the payment of the note. By amendment, Mrs. E. M. Burnet and W. H. Burwell were made parties defendant. The court directed a verdict for the plaintiff; and the defendants except to the overruling of their motion for a new trial. The only real defense to the suit was a plea of usury, it being claimed that twelve per cent, per annum was included in the principal of the note sued on. It appears that the deceased, E. S. Burnet, borrowed $1,000 from Smith, under whom the defendant in error holds. This does not seem to-have been denied by the defendants on the trial below. The note was for $1,126 principal, and bore eight per cent, interest from its maturity. It seems that, in order to secure an unincumbered title to the property conveyed to secure his note, Smith was obliged to take up a mortgage amounting to $125, and to pay $1 to the clerk for recording. There was no contradiction of the evidence to the effect that this mortgage existed, and that it was paid off by Smith. The transaction was therefore cleared of all suspicion of usury. A verdict for the plaintiff was demanded by the uncontradicted evidence, and we will not reverse the judge below for so directing.

Judgment affirmed.

All the Justices concurring.