Turner v. B. & L. Ass'n

The opinion of the Court was delivered by

Mr. Justice Gary.

1 The appeal herein is from an order sustaining a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The specific objections to the complaint are set out in the order sustaining the demurrer and dismissing the complaint, which, together with the complaint and plaintiffs’ and defendants’ exceptions will be incorporated in the report of the case. Both the plaintiffs and the defendants appeal from the order of his Honor, Judge Witherspoon, in so far as it decides that the contract upon its face is usurious. The complaint alleges that upon final settlement the amounts to be retained by the 'defendant were not to exceed the sum actually loaned, with interest thereon at the rate of eight per cent, per annum. Such a stipulation prevents the contract from being illegal, which, otherwise, would be usurious. Buist v. Bryan, 44 S. C., 121; Thompson v. Gillison, 28 S. C., 542. There was error, therefore, on the part of his Honor in holding that the contract upon its face is usurious.

2 The plaintiffs’ other exceptions allege error on the part of the Circuit Judge in sustaining the demurrer upon the second objection urged against the complaint. Section 1390 of the Rev. Stat. is as follows: “No greater rate of interest than seven per cent, per annum shall be charged, taken, agreed upon or allowed, upon any contract arising in this State, for the hiring, lending or use of money or other commodit}^ except upon written contracts, wherein by express agreement a rate of interest not exceeding eight per cent, may be charged. No person or corporation lending or advancing money or other commodity upon a greater rate of interest, shall be allowed to *405recover, in any Court of this State, any portion of the interest so unlawfully charged; and the principal sum, amount or value so lent or advanced, without any interest, shall be deemed and taken by the Courts of this State to be the true legal debt or measure of damages, to all intents and purposes whatsoever, to be recovered without costs * * *• ” Section 1891 of the Rev. Stat. is as follows: “Any person or corporation who shall receive as interest any greater amount than is provided for in the preceding section, shall, in addition to the forfeiture therein provided for, forfeit also double the sum so received, to be collected by a separate action, or allowed as a counter-claim to any action brought to recover the principal sum.” The allegations of the complaint are to the effect that, at the time the usurious interest was received, Mrs. Rebecca M. Jones, the mortgagor, had no interest whatever either in the shares of stock or the mortgaged property; that the defendants consented to the transfer of Mrs. Jones’ shares of stock, and thereafter recognized and dealt with the plaintiffs as owners of the stock and payers of said bond; and that the defendant thereafter received from the plaintiffs the monthly instalments upon said stock, and interest upon said loan, which amounted to a greater rate of interest than eight per cent, per annum. The defendant’s attorneys, in their argument, contend that the complaint does not allege that the payments were made on account of interest other than the $5 per month, and that, therefore, the complaint is insufficient in form. Paragraph IV of the complaint contains the allegations as to the receipt of usurious interest, and that they are sufficient for that purpose, it is only necessary to refer to Harrell v. Parrott, 45 S. C. It is contended that the defense of usury being personal in its nature to the debtor, the plaintiffs herein cannot maintain this action. If the alleged usurious interest had been received from Mrs. Rebecca M. Jones, quite a different question would be presented from the one now before the Court. The test as to the right of a party to bring an action under section 1391, supra, *406is, to whom did. the cause of action accrue? If the usurious interest was received from the person bringing the action, he is the one who has suffered damage, and he is the one to bring the action for such damage. At the time the usurious interest is alleged to have been received, it was a matter of indifference to Mrs. Jones what amount was required by way of interest, but it was a matter of concern to the plaintiffs, who were compelled to pay it. Being the parties alleged to have been wronged, they are the proper parties to bring action to redress such wrong.

It is, therefore, the judgment of this Court, that the order of the Circuit Court be reversed.