Tyson v. Rickard

Buchanan, J. I perfectly agree in opinion, on both of the bills of exceptions, with the judges before whom this cause was tried in the court below. On a question of usury it is the view, the intention of the parties, which gives character to the transaction, and no matter what the form, where the real truth and substance [114] is a loan of money — a lending on one side, and a borrow» ing on the other, at more than an interest of six per centum per annum-, no shift or device can take it out of the act of assembly. In the investigation ofsiich questions the original intention of the parties must often be come at by matter de hors the particular instrument of writing ésecuted between them, otherwise the' act of assembly would be a dead letter; and in this case Í think the court below did right in leaving it to the jury to dedide upon the whole of the evidence, whether in the true contemplation of the' parties, the transaction in question was a real sale by one, and a purchase by the other; or whether it was only colourable to hide an usurious loan; and in directing them to give a verdict for the plaintiff below, if they found it to be the intention of Tyson and Belton, the one to lend, and the other to borrow — the amount of the rent reserved being equal to an interest offifleenper centum per annum. As to the second bill of exceptions. A stipulation to repay the principal in money is not necessary to constitute a loan; it is enough if the principal is secured, and not bona fide put in hazard; and it matters not what the nature of the security is, if it is sufficient. As if aman borrows ¿020 to pay ¿010 For interest for one year, and pawns goods to the lender of the value of ¿0100, on astipulation in writing by the lender, to return the goods on payment bjr the borrower of. ¿030, with interest thereon — this is an usurious lending, though there is no undertaking by the borrower to repay the principal. So in this case the principal sum advanced by Tyson was secured by the deed from Belton„ The true ground is, not that there must be a stipulation to repay the principal at all events in money, but that it must in some way be secured, as distinguished from being put in hazard; but whether it is secured by pawn or pledge, or a conveyance of land, or is by agreement to be returned in lands, goods or money, is not material. If the principal is secured, and the interest reserved is more than the law allows, it is usury. The position contended for, “that whenever it is in the power of a borrower of money to pay the principal within a limited time without interest, it is not usury,” I conceive has no bearing upon this casé; but is only applicable to cases in which the increased sum is stipulated for [115] nominse pense, and there is no immediate reservation of interest, as in the case of a man lending £20, to receive £40 at the end of two years, or only ¡620 if paid at the end of one year, in which the payment of the smaller or larger sum is intentionally and expressly by the pontract placed at the option of the borrower. Every case of usury must depend on its own circumstances, and the intention of the parties, when it can be come at, and not the words used, must govern. [The judge here stated the facts, and then continued.] The intention to negotiate a loan has been found by the jury, whose province it was to inquire into the meaning of the parties; and so far from the rent being reserved nommai pense, or its appearing to have been the intention of the parties that Belton might discharge himself of all rent .by payment of the principal before any rent bad accrued, that is, before the end of the first quarter, it seems clearly to have been their understanding and intention that he should not; for the stipulation in the lease is to re-convey on payment of the principal, together with all arrearages of rent, which shows that they contemplated an accrual of rent, and that the money was not to be paid before such accrual. No matter, therefor?, w'hat the strict legal construction of the lease from Tyson to Belton is, that cannot regulate the case, if it was not the intention of the parties, that Belton might, by paying the principal air any time before the expiration pf the first quarter, discharge himself from the rent up to the time of such payment; and fhat intention was matter for the jury. With respect to the matter in arrest of judgment — The. not joining issue on the first and second replications was healed after verdict, and the motion properly overruled. Gantt and Ea£le, J. concurred.