Elba Bank & Trust Co. v. Davis

ANDERSON, O. J. The bill is filed by Jane E. Davis and her husband to cancel a certain deed made by them, or to have the same declared a mortgage, and to redeem, and also seeks discovery and an accounting. The bill shows that these complainants' were joint vendors and mortgagors throughout and that they have a joint and common interest in canceling or adjusting their joint obligation, notwithstanding the wife may own the land and the husband the personal property embraced in the conveyances. Each have a joint interest in all the credits that should go to the mortgage indebtedness made by either of them, or arising from a sale or conversion by respondent of the mortgaged property, and it matters not as to the ultimate result or status of ownership between them, and they are jointly liable upon the mortgages prima facie, though the wife claims nonliability because of being surety for her husband. They ask for an accounting and redemption in the alternative, and this does not render the bill multifarious. Section 3095 of the Code of 1907; Forcheimer v. Foster, 192 Ala. 218, 68 So. 879, and cases there cited. To constitute the offense of usury, there must be an intent to do something which is in violation of the statute. In accordance with the weight of authority, it is sufficient if this unlawful intent is entertained by the lender alone against whom the usury acts are aimed, and the fact that the borrower does not know that he is contracting for or paying usurious interest is immaterial. But in some jurisdictions it is said that usury is predicated upon a contract, and cannot exist unless the unlawful intent is shared by both lender and borro vv *177 er; that is, the excessive payment must have been macle ancl received in accordance with the terms of a mutual agreement. 39 Cyc. 920. It seems that the averments of the bill of complaint, that the respondents knowingly and intentionally included a greater rate of interest in the notes and mortgages executed by the complainants, though ignorant of the fact, brings the case within the influence of section 8567 of the Code of 1923, under our early case of Wright v. Elliott, 1 Stew. 391, reaffirmed in Wright v. Minter, 2 Stew. 453. The case of Uhlfelder v. Carter’s Adm’r, 64 Ala. 527, cited by appellants’ counsel, is not in conflict with this holding, as it merely decides that, in determining whether or not the contract is infected with usurious interest, there must be an intent to take or reserve more than lawful interest — not an intent both to take and pay more than lawful interest. We also think that the- bill as last amended sufficiently sets out, so far as the complainants are able, the item or items constituting usury. Williams v. Noland, 205 Ala. 63, 87 So. 818. , The trial court did not err in overruling the demurrer to the bill as amended, and the decree is affirmed. Affirmed. SOMERVILLE, THOMAS, and BOÜLDIN. JJ., concur.