Shaw v. Ingersoll

Miller, J.

The case presents but one question, namely : Were the note and trust deed, executed to Ingersoll by the plaintiffs, the property in good faith of Ingersoll, or were they procured by him colorably for the purpose of evading the usury law, and for the benefit of Callanan & Ingham ?

We do not propose to enter into a discussion of the evidence in detail, but simply to state our conclusion. We have given all the evidence in the record a careful examination and are of opinion that, while there are some facts and circumstances shown by the testimony, which tend in some degree to cast suspicion on the good faith of the transaction, the preponderance of the evidence is the other way.

The check of Ingersoll, drawn on Callanan & Ingham, w;as received by them as payment and in satisfaction of the debt secured by the trust deed held by them against the plaintiffs, and the trust deed canceled and discharged; and the evidenqe very satisfactorily shows that the note made by Ingersoll to Callanan & Ingham, for the amount of his check, was actually paid by him. Ingersoll testifies positively also that neither Ingham nor Callanan & Ingham owned or controlled the deed of trust which Shaw and wife executed to him; that the transaction was not for their benefit, and that no arrangement or understanding was made between him and them in respect to his making the loan to Shaw.

In all this we think he is sustained by Ingham, Callanan and the witness Pritchard, who was the book-keeper of Callanan & Ingham at the time the loan was made.

The weight of the evidence is in favor of the bona fides of the transaction, and the judgment of the district court will be

Affirmed.

Cole, J., took no part in the decision.