Cahn v. Farmers & Traders Bank

Citations

• 1 S.D. 237
• 46 N.W. 185
• 1890 S.D. LEXIS 24

Syllabus

<p>1. Usurious interest was included in the note upon which a judgment was rendered in a suit hy the bank, defendant herein, against W. & K., who were debtors to the bank, and also to the plaintiffs in this action. Held, in this suit by these plaintiffs to set aside said judgment as fraudulent as against the creditors of W. & K., that usury is a personal defense, and that no one but a party to the usurious loan, or his personal representative, can avoid a usurious contract on account of usury. Held, further, that the omission of W. & K. to defend the bank suit on the ground of usury was no evidence, of itself, of fraudulent intent on their part in allowing a judgment by default to be taken against them. Held, further, that including usurious interest in said note upon which said judgment was rendered did not render the judgment fraudulentas to the creditors of W. & K.</p> <p>2. When a note made payable on demand was dated August 17th, and suit commenced thereon August 18th, and no copy of the note is found in the record, the court will presume that the judgment of the district court is correct, and that days of grace were waived in the note and the suit commenced within the proper time.</p> <p>3. Including in a judgment a small amount of interest for days of grace does not necessarily render such judgment fraudulent as to creditors, but the question as to the intent of the party in including it is for the jury.</p> <p>4. After the bank had taken judgment in its suit against W. & K., it demanded and received $72 interest on the judgment, which it subsequently agreed to pay back. Held, this did not render the judgment • fraudulent as to creditors, but was evidence to go to the jury for the purpose of showing with what intent the judgment was taken.</p> <p>5. The judgment of the bank against W. & K. was withheld from the record from September 22d to December 9 th. Held, this did not render the judgment fraudulent as to creditors; but was evidence for the jury to consid