May v. Folsom

HARALSON, J. 1. It was rather a departure from the ordinary practice in chancery, for the chancellor to make the reference he did to the register, in advance of any evidence taken in the cause. We must presume, in the absence of anything to show to the contrary, that this method of procedure was adopted by the consent, or at the request, of the parties, for the purpose of procuring the evidence for the final submission and determination of the cause. Thei*e was no decree in the case until after the register had taken the evidence and reported it and his findings on it, in accordance with the directions of the chancellor previously given. In such aspect, the legal conclusions of the register amounted to nothing, for it was the province of the court, on the evidence thus taken, to determine the law of the case. This the court did, as well as to decide for itself the disputed question of fact. The case must be treated on review as if the case had been submitted and tried on evidence taken in the ordinary manner, and without reference to the conclusions of the register on the evidence taken by him. 2. First, let it be observed, that the plea of usury in this case, if applicable to complainant, is entirely insufficient and should have been disregarded by the court. A party who has made usurious payments on a debt, as we have repeatedly held, can not obtain credit therefor, unless he distinctly and correctly sets forth in the pleadings the terms and nature of the usurious agreement and the amounts of the payments.-Stickney v. Moore, 108 Ala. 590, and cases therein cited. There was no attempt to comply with this rule in the answer of defendant, Folsom. The statement in the plea of usurious payments is general and by no means specific. 3. In the next place, it does not appear that the complainant or her husband who acted as her agent in the transaction, ever knew, even, of the alleged usurious transactions between Aeree and Folsom. The mortgage given, though taken in the name of Aeree, was really taken for Mrs. May, and Folsom was so told at the time he executed it. It was to be immediately transferred by Aeree to Mi*s. May, upon her paying over the money, to secure which it was given. Her husband was told it was borrowed for Folsom, and not for Aeree. May declined to take a transfer of Acree’s old mortgage on Fol [203] som, but agreed to lend the money, if Folsom and wife would make a new mortgage on the same property. May evidently did not desire to become complicated with Acree's and Folsom’s old transactions, and took wise precaution from becoming so complicated. He was willing to lend his wife’s money only on a new and independent security. The money was borrowed by Folsom for the purpose of paying Aeree, to whom he was indebted, and who was pressing him, and for a balance he needed, and in the transaction, Aeree simply acted as a go-between. It does appear, however, from Aeree’s testimony that May received 12 or 15 per cent, from Folsom for making the loan. He says : “I brought it [the mortgage] to May and transferred it to him, [meaning his wife] and he paid me the money on it — its face value, — less 12 or 15 per cent, interest, out of which I deducted my debt, and paid Folsom the balance.” With a proper plea of usury as to complainant and her mortgage, on this proof, the defendant would be discharged from the payment of any interest on the debt.-Dawson v. Burrus, 73 Ala. 111; Hunt v. Acre, 28 Ala. 581. But, in no event, as the case is presented to us, could the complainant’s foreclosure be for less than the amount of money she actually loaned the defendant. The chancellor erred, and his decree is reversed and the cause remanded. Reversed and remanded.