Ballinger v. Bourland

Mr. Justice Sheldon delivered the opinion of the Court: All the foundation which there appears to be for the charge of usury in the loan of $17,000 from the insurance company is, that the loan was obtained by Ballinger, through the agency of Bourland, who resided at Peoria, in this State, and that Bourland charged Ballinger a commission of five per cent on the amount for effecting the loan, and $100 for going to Chicagand procuring there a release of the premises from a prior mortgage incumbrance upon them of $16,000, which charges Ballinger paid to Bourland. There appears but the simple transaction itself, without any pretense, by the testimony, that the insurance company was in any way privy to the receiving of the money by Bourland, or that the agreement therefor was with the knowledge or authority of the insurance company, or that it derived any benefit therefrom. It seems to be abundantly settled by the authorities that usury is not to be predicated of a transaction of such a character. Condit v. Baldwin, 21 Barb. 181, S. C. 21 N. Y. 224; Bell v. Day, 32 id. 165; Muir v. The Newark Savings Institution, 16 N. J. Eq. R. 537; Conover v. Van Metar, 18 id. 481; Rogers v. Buckingham, 33 Conn. 81; Tyler on Usury, 156. It appears that, before the trustee sale was made, Samuel Crumpton made application to the lEtna Life Insurance Company for a loan of $17,000, and had the promise of it, provided he could give ample security. After the sale, Crumpton gave his note to the company for $17,000, secured in its payment by a mortgage upon the lands, and paid the balance of the purchase money ($3784) in cash, at the time of the sale. Appellant contends that this transaction constitutes a sale on' credit. We fail to perceive wherein it is objectionable as not being a sale for cash, as required by the trust deed. Any such arrangement tends to benefit, not injure, the mortgagor. In Strother v. Law, 54 Ill. 414, it was held, that if the mortgagee, upon such a sale, choose to give credit for the amount due him, it would not be inconsistent with the terms of the power to sell for cash. To the same effect is Burr v. Borden, 61 Ill. 391. All the allegations of the bill in impeachment of the trustee sale, in other respects, we regard as wholly unsupported by the proofs, and that it is unimportant to give them further remark. That sale, then, not being invalidated, a perfect title was acquired thereunder by Samuel Crumpton, the purchaser thereat, who subsequently conveyed by quitclaim deed to William- W. Crumpton. This seems to render unnecessary any investigation of the transaction between Ballinger and William W. Crumpton of May 20, 1870, when the former made a quitclaim deed to the latter of the equity of redemption in the land; for, should such quitclaim deed, and bond from Crumpton, given at the same time, for a reconveyance on payment to the latter of the sum of $3744 on or before January 1, 1871, be found to be, as claimed by Ballinger, a security for a loan of $2000 at an usurious rate of interest, we do not perceive that Ballinger could derive any benefit thereby, as the equity of redemption so quitclaimed and agreed to be reconveyed has been foreclosed and extinguished by the subsequent trustee sale on March 23, 1871. This would so seem, unless it be otherwise as to any surplus there may be under the trustee sale. And in this connection may be considered the question of accounting by Bourland, the trustee. Bourland retained from the proceeds of the sale under the trust deed $1000 as compensation to himself in making the sale. On the one hand, it is contended that this is not provided for in the trust deed, and on the other, that it is, by the clause, for the payment of “all reasonable expenses.” The propriety of this charge may admit of question. We do not feel called upon to pass upon it. If the trustee has improperly retained in his hands any of the proceeds of the sale which he should have paid over, there will be a remedy at law to recover the same. The order dismissing the bill is expressly made without prejudice to the right of complainant in any legal proceeding. We think, however, that any such surplus of proceeds of the sale should be paid over to Crumpton as the holder, at the time, of the equity of redemption. There is no pretense that Ballinger ever paid to Crumpton any part of the $2000 which the former claims as having been borrowed and secured upon the equity of redemption; nor, as we-understand, that Crumpton received any rents and profits from the premises previous to their sale under the trust deed. The decree dismissing the bill is affirmed. Decree affirmed. Mr. Justice Walker: I am unable to concur in the conclusion reached by the court in this case.