Norvell v. Hedrick

Snyder, Judge, announced the opinion of the Court: It is claimed by the appellant, that the trust-deed of January 13, 1871, from W. A. Quarrier, trustee, to Chas. Hedrick, trustee, did not operate as a conveyance of either the legal or equitable title to, the real estate therein described; because neither she nor her husband is a party thereto, nor was it signed or acknowledged by either; and because she being a married woman and her husband not having united in the written request, her privy examination and acknowledgment of said request are of no effect as to her. These objections rest, evidently, upon a misapprehension of the law and the facts in this cause. The legal title to the property was not vested in Mrs. Norvell. She was merely [528] the equitable owner, and the deed, which conferred upon her the use, also prescribed the mode and manner of disposing of the property. The person who made the grant and created the power had the right to impose upon them such terms and ceremonies in regard to the disposition of the property, not inconsistent with legal principles, as he thought proper. He thought proper in this instance to confer authority upon the trustee to sell and convey the property upon the written request of Mrs. Norvell attested by a credible witness. The husband is not mentioned in this power nor does it require the request to be acknowledged in any form by Mrs. Norvell. All that is required is that the wife shall make the request in writing and that said writing shall be witnessed by a credible person. When this form is complied with the power and authority of the trustee to convey is absolute. The exercise of this power by the trustee operated as a grant from Whitaker and Quarrier, the original grantors, and not as a grant from the -wife; and, therefore, no privy examination, joinder of the husband or other formality, not mentioned in the deed creating the power, was necessary. Lee v. Bank of U. S., 9 Leigh 200. The said trustee having thus the power to dispose of the corpus, and having disposed of it in the precise mode prescribed by the deed creating the power, the said deed of January 13, 1871, to Chas. Hedrick trustee operated as a valid conveyance of the fee for the purposes therein mentioned. Woodson v. Perkins, 5 Gratt. 345. It is further claimed by the appellant that it was error to decree a sale of the said real estate without first ascertaining by proper reference whether the rents and profits would not in a reasonable time pay the said trust debt of E. Hooke & Co. The appellant never asked for any reference or made any objections to the sale on this ground in the court below; and, therefore, without considering whether such objection, if properly made, could avail in a case where it is sought to enforce the lien of a trust deed, this objection must be overruled. This Court has repeatedly decided that no such objection can be made for the first-time in this Court. Hill v. Morehead, 20 W. Va. 429; Rose v. Brown, 11 Id. 123. This disposes of all the grounds of error assigned by the [529] appellant; but it is insisted by the appellees, E. Hooke & Co., that the circuit court erred in not allowing them the twelve per cent, interest so far as it had been actually paid. It is shown by the record that seven hundred and twenty dollars was paid on the said trust debt of one thousand five hundred dollars, which by agreement at the times of payment was applied in discharge of interest thereon for four years at the rate of twelve per cent, per annum; that five hundred and forty dollars of said seven hundred and twenty dollars was paid January 13, 1874, and one hundred and eighty dollars the residue on January 26, 1875. If we treat this as a bill filed under our statute the lenders, E. Hooke & Co., can recover their “ principal money with six percent, interest only.” Sec. 7, ch. 96 Code p. 533. If, however, the excessive interest shall he regarded as having been paid and the borrower is now seeking to recover it back — the statute not applying to such case — the result would still be the same; because under the general rules of law a party who has paid usurious interest may recover it back from the lender in an action of assumpsit for money had and received. Browning v. Morris, 2 Cowp. 790. And, in a court of equity, where an excessive interest has been paid, but the debt or some part of it yet remains up aid, such court, in stating the account between the parties, will allow credit upon the principal for whatever usurious interest had been paid. Tyler on Usury 448; Parmelee v. Lawrence, 44 Ill. 405; Spengler v. Snapp, 5 Leigh 478; Davis v. Demming, 12 W. Va. 246, 278. The circuit court did not, therefore, err in crediting on the debt of E. Hooke & Co. the usurious interest paid by the appellant as interest on said debt. For the reasons aforesaid, I am of opinion that the said decree of the circuit court of June 5, 1880, must be affirmed with costs to the appellees, E. Hooke & Co., against the appel-tlan and damages according to law. And this cause is remanded to said circuit court for further proceedings, to be had therein according to the principles, rules and practice of courts of equity. The Other Judges Concurred. Decree Affirmed. Cause Remanded.