Fowler v. Equitable Trust Company (141 U.S. 384)
EQUITABLE TRUST CO.

v.
FOWLER et al.

No. 33.

October 26, 1891.

[Syllabus from pages 384-385 intentionally omitted] By deed, bearing date November 1, 1873, and acknowledged and filed for record February 23, 1874, Edwin S. Fowler-his wife, Sophie Fowler, uniting with him-conveyed to Jonathan Edwards, in feesimple, certain real estate in the city of Springfield, Ill., in trust to secure the payment of the principal and interest of nine bonds, of $1,000 each, executed by Fowler to the Equitable Trust Company, a Connecticut corporation, and payable, principal and interest, at its office in the city of New York; the principal, five years after date, and the interest, semi-annually, at the rate of 7 per cent. per annum.

The deed recited that the bonds were given to secure a loan of $9,000, payable five years after date thereof, with interest at 10 per cent. per annum, of which 7 per cent. per annum was secured by the deed of trust, and was to be paid as in the bond provided; and the balance, to-wit, 3 per cent. per annum, was 'discounted,' and paid at the time of the execution of the deed. In case of default in paying the principal or interest as each matured, or of failure to keep and perform the covenants of the deed, or any of them, the trustee was authorized to sell at public auction, after advertisement, to the highest bidder for cash, and with or without previous entry upon the premises, the right and equity of redemption of the grantors, and out of the proceeds of sale to pay the costs, charges, and expenses of the advertisement, sale, and conveyance, 'including commissions, such as are, at the time of such sale, allowed by the laws of Illinois to sheriffs on sale of real estate on execution,' all sums paid by the trustee for insurance and taxes, with 10 per cent. interest thereon from time of payment, the principal and the accrued interest remaining unpaid at the time of sale, and to Fowler any balance remaining.

The present suit was brought October 26, 1882, to foreclose the defendants' right and equity of redemption, and for a sale of the mortgaged property to raise such sum as might be due the mortgagee.

Fowler, by his answer, put the plaintiff upon proof of the averments of the bill, and made defense upon several grounds; But the original answer is important only as alleging that the loan was usurious, and was consummated in the manner it was with intent to evade the statutes of Illinois relating to interest.

The plaintiff filed a general replication; and, subsequently, the defendants, by leave of the court, amended their answer, stating more fully the grounds upon which they based the defense of usury. They also alleged that the contract of loan was and is a New York contract, and that by the statutes of that state it was usurious, in that the interest contracted to be received by the plaintiff, having regard to the amount actually advanced by it, was in excess of 7 per cent. per annum,-the rate established by the laws of New York. Of those statutes they claimed the benefit.

By a decree passed October 20, 1884, the court below found the amount due from Fowler to be only $2,980.67 on the bonds, and $270.94, insurance and taxes paid by the plaintiff, with interest thereon; in all, $3,251.61. At the foot of that decree were these orders:

'And thereupon the complainant entered its motion for a rehearing before a full bench.

'Whereupon, on said 20th day of October of the year last aforesaid, [1884,] came the complainant, by its solicitor, and filed in the clerk's office of said court its motion and petition for a rehearing in this cause, which motion and petition are as follows,' etc.

Following the above, in the transcript, are the written motion and petition for rehearing.

On the 8th of June, 1885,-the succeeding term,-the cause was set for hearing on the 29th of that month before what is called a full bench. Then appears an order, under date of June 30, 1885, entered as of October 31, 1884, granting the rehearing asked. To that order the defendants excepted.

By the final decree of January 11, 1887, the sum of $8,150.79 was adjudged to be due the trust company, of which $7,809.69 was found to be the sum actually advanced by it to Fowler, and $341.10 was the amount of insurance and taxes on the property paid by the company, with interest on each sum, from date of the decree, at the rate of 6 per cent. per annum. The mortgaged property was ordered to be sold to raise the above aggregate amount found to be due, with such interest, and the costs of the suit. From that decree each party has prosecuted an appeal; the defendants insisting that no decree, for any amount, should have gone against them, while the plaintiff insists that the decree should have been for a larger amount.

W. L. Gross, for Equitable Trust Company.

[Argument of Counsel from pages 388-391 intentionally omitted]

R. G. Ingersoll and Wm. Richie, for the Fowlers.

[Argument of Counsel from pages 391-393 intentionally omitted]

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes
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