Tummons v. Hamilton

Jackson, Justice. A motion was made for a new trial on various grounds, none of which seem to be material and tenable except the assignment of error in regard to the taint of usury in the deed from Hamilton to Mrs. Tummons. That deed was made on the 10th of September, 1874, pending the abolition of usury in this state, and the court charged that “ if the deed was made in consideration of the payment of a note in which there was usury, and the consideration of the the deed was tainted with usury, no tenancy can be predicated upon a title thus tainted with usury, the relation of landlord and tenant cannot arise in such a case, and the tenant is not estopped from denying the landlord’s title. If you are satisfied from the evidence that the deed is founded upon such usurious contract, the plaintiff cannot recover.” Under the law as ruled by this court a deed made on the 10th of December, 1874, could not be so tainted with usury as to render the title void, and therefore this charge is erroneous ; and inasmuch as the verdict of the jury is in these words : “We, the jury, find for the defendant because of usury,” the error is vital. In the case of Ballard vs. The Peoples’ Bank of Newnan, 61 Ga., 458, it was held that a deed made on the 25th of March, 1873, was not usurious, all laws on the subject of usury having been repealed on the 19tli of February, 1873. So in the case of a mortgage in Neil vs. Bunn, 58 Ga., 583, the same point in principle was ruled. So in Broach vs. Barfield, 57 Ga., 601, it was held that “in 1874 there was no law in Georgia making usurious any agreement, 'written or verbal, for any rate of interest whatever.” So [139] in 59 Ga., 616, the case of Cooper vs. Braswell, it was-held that “ from February 13th, 1873, up to February 94th,. 1875, there was no law against usury in this state; and with the repeal of the usury laws, the act annulling a deed tainted with usury, we think, was also repealed. Hence the deed of December, 1874, was good.” So that the question is not open with us and the judgment must be reversed, inasmuch as the light of plaintiff to dispossess defendant in the dispossessory warrant rested on the deed made in 1874, and the court charged and the jury found in the teeth of the decisions made in the cases cited. Judgment reversed.