Beard v. Bingham

A Court of Equity will not permit the enforcement of a usurious contract, but when called upon-by the borrower for assistance will compel him to do equity by paying the principal money with legal interest. (Ballinger v. Edwards, 4 Ire. Eq. 449, cited and approved.)

Court of Equity--Practice-- Usurious Contracts. MotioN to dissolve an Injunction, heard at Chambers on the 10th day of November, 1876, before Cloud, J. . The plaintiffs alleged that in January, 1874, they executed a note for $321.52, with interest at 10 per cent, to Thomas E. Brown one of the defendants, and to secure the payment thereof executed a mortgage deed to defendant Bingham conveying certain lands in Rowan County, being the homestead of plaintiffs. Subsequently defendant Brown assigned the note i to defendant Kesler who purchased with notice of the usurious interest. A sale of the land was advertised by defendant Bingham under the power contained in the deed, but an order was made by Kerr, X, restraining him from selling and directing him to appear before the Judge of the 8th District and show cause why the injunction should not be made perpetual. The defendants appeared and filed an answer alleging that they did not intend to exact the 10 per cent, interest by reason of an Act to prevent usury, ratified on the 22nd of February, 1875 ; that the original consideration of said note was for money borrowed of one Swink, that Swink was indebted to defendant Brown for the purchase of a house and lot in Salisbury, and assigned the said note to said Brown as part payment; that plaintiffs have never paid any part-thereof; the defendants ask that the injunction be dissolved and the said land be sold to pay the debt. His Honor dissolved the injunction and ordered that de fendants be allowed'to collect the principal of the note and six per cent interest, and adjudged that defendant Bingham the trustee proceed to sell the land. Appeal by plaintiffs. cited Ballinger v. Kdwards, 4 Ire. Eq. 449; McBr'ayer v. Roberts, 2 Dev. Eq.. 75, and State Bank v. Knox, 1 D & B. Eq. 50.