Churchill v. . Turnage

Citations

• 30 S.E. 122
• 122 N.C. 426
• 1898 N.C. LEXIS 279

Syllabus

<p>Action for Accounting and Injunction — Mortgagor and Mortgagee ■ — • Usury — Forfeiture of Interest— Time Prices for Goods — Debtor Seeking Equitable Belief— Pleading — Evidence.</p> <p>1. Where a complain! in an action to enjoin the sale oí land under mortgage and for an accounting, alleged (substantially) that a note and mortgage had no other consideration than the balance due on a prior debt and mortgage of which it was a renewal, and that the difference between the two was usury charged by the mortgagee for indulgence; Held, that, under The Code, the allegations set out with sufficient distinctness the facts which constitute the alleged usury.</p> <p>2. Where, in an action to enjoin a sale of land under mortgage, the complaint alleged usury in the debt and the answer admitted that the note and mortgage were in consideration of the balance due on a prior mortgage but in another paragraph alleged a further consideration of several hundred dollars, the exact amount of which the defendant could not remember, and on the trial it appeared that the new mortgage debt exceeded the old one and accrued interest by several hundred dollars for which no consideration was proved; Held, that the difference between the true amount of the old debt and the amount named in the new mortgage was usurious.</p> <p>3. A “time” price charge of ten per cent on the cash price, for supplies furnished under an agricultural lien, being the usual rate of advance, is not usurious.</p> <p>4. A debtor, seeking the aid of a Court of Equity, will have the usurious element eliminated from his debt only upon his paying the principal and legal rate of interest, the only forfeiture enforced against the creditor being the excess of the legal rate. ( Clark, J., dissents arguendo.)</p>