Supreme Court of South Carolina, 1925

Perry v. Mabus

Supreme Court of South Carolina · Decided April 3, 1925 · MR. JUSTICE FRASER as follows:

126 S.E. 487; 135 S.C. 292; 1925 S.C. LEXIS 29 (South Eastern Reporter)

Counsel

Mr. E.L. Asbill , for appellants, cite: Interest regulated: Civ. Code, 1922, Sec. 3638. Penalty for charging usurious rate of interest: Civ. Code, 1922, Sec. 3639. What agreements deemed usurious: 29 A. E. Enc. of Law, 460. Usurious contract construed strongly against lender: 39 Cyc., 918. Schemes to evade usury statutes prohibited: Tyler on Usury, 354. Contract in question usurious: 114 S.C. 364 ; 110 S.C. 560 ; 96 S.E., 722 ; 76 S.C. 450 ; 57 S.E., 180 ; 51 S.C. 550 ; 29 S.E., 225 . Usury may be unintentionally charged: 77 S.E., 141. When party charged with notice of weak mental condition of other party: 72 Mo., 73 ; 125 N.W., 161; 31 L.R.A. (N.S.), 1160. Mortgagee having notice of mental incapacity of mortgagor cannot enforce mortgage: 121 N.C. 31 ; 27 S.E., 994 ; 62 Miss., 440 ; 82 A., 877; 42 L.R.A. (N.S.), 343. Mortgage executed by insane party not enforceable, though mortgagee without notice of insanity: 251 Ill., 116 ; 95 N.E., 1079 ; 94 Ind., 535 ; 48 Am. Rep., 185; 8 Ohio Dec. Reprint, 154. Equity will not enforce lunatic's contract except for his benefit: 66 Am. Dec., 414. Circumstances sufficient to charge one with notice of insanity: 31 L.R.A. (N.S.), 1159. Contracts with lunatics before and after adjudication; void or voidable: 52 S.E., 666 . Contract with lunatic constructively fraudulent: 52 S.E., 666 . Contract with habitual drunkard made during sober moment voidable: 8 N.Y., 388 ; 59 Am. Dec., 99. Contract with insane person prima facie void: 29 S.E., 182; 8 Rich. Eq., 286. Deed of insane person void: 4 McC., 183; 17 Am. Dec., 722; 15 Well., 9; 21 L.Ed., 73 ; 71 A.S.R., 430, note; 19 L.R.A. (N.S.), 461. Forms of undue influence rendering contract voidable: 177 S.C. 459 ; 4 L.R.A., 639. Evidence of nonexpert on mental capacity is competent: 37 L.R.A. (N.S.), 592. Insanity: 107 S.C. 72 . Borderland between weakmindedness and imbecility: 110 S.C. 183 ; 106 S.C. 328 ; 105 S.C. 329 ; 103 S.C. 450 ; 88 S.E., 299 ; 24 S.C. 8 . Capacity to contract as affected by mental condition: 90 S.C. 207 ; 61 S.C. 501 ; 39 S.E., 742 ; 57 S.C. 413 ; 52 S.E., 666 ; 30 S.C. 473 ; 9 S.E., 515 ; 24 S.C. 1 ; 3 L.R.A. (N.S.), 174; 2 Pomeroy's Eq., 957. Proof of sanity: 71 S.C. 331 ; 65 S.C. 558 ; 16 S.C. 334 ; 4 McC., 183. Deed of aged person not understanding instrument set aside: 113 S.C. 392 . Messrs. Timmerman Graham for respondent.

Opinion of the Court

The opinion of the Court was delivered by Mr. Justice Fraser as follows:

“This is an action to foreclose a mortgage. The defenses set up are usury and insanity. It was tried before Hon. C. J. Ramage, Special Judge, who found for the plaintiff. The defendants appealed.

I. The defendants set up usury and insanity

The first assignment of error is that his Honor held that there was no evidence of usury. His Honor was correct. The appellant relies upon this statement to show usury:

“We paid the first $500 that was borrowed from- him. It was paid back to him before the other papers were fixed in January, and, of course, we paid him $540. He charged us interest from August to January.”

Appellant claims that the $40 was interest on $500 from August to January. It is not clear that it was interest only. The burden is on the defendants to máke it cléar that the $40 was for interest only. But suppose it. was interest only. The statute (Civil Code 1922, page 3639) provides two remedies for usurious interest received. One is a separate *298 action, and the other is a “counterclaim in any action brought to recover the principal sum.” This is not an action to recover the $500 loan. That loan of $500 “was paid back to him before the other papers were fixed.” The two loans were separate and distinct so far as the money lender and the borrower were concerned. There is no evidence of usury in this second loan. This assignment of error cannot be sustained.

II. The next assignment of error is that his Honor was in error in finding that the obligors were of sound mind. There was no evidence that Mrs. Sallie Mabus was of unsound mind. It is true she had no education, but the record shows that she was a thrifty woman, of excellent natural ability. His Honor’s finding as to Eustace Mabus is abundantly sustained by the evidence. The hearsay evidence as to the opinion of Dr. Watson was received without objection, and it is too late to object to it now.

All of the exceptions are overruled and the judgment appealed from is affirmed.

Messrs. Justices Watts and Marion concur. Mr. Chiee Justice Gary and Mr. Justice Cothran did not participate.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.