Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-01-25
Bowers rs. Douglass.


ry note for $1,000 co. purportng to have been by the
firm of Douglass q WitherspOOn payable to A. j.
Montgomery, and by him endorsed to the plaintiff
This suit is against Douglass alone.
The defendant pleaded, first, Hldebi, ndsecondly,
plea II the nature Of non est fuctlm. Judgment
was for the defendant; and the plaintiff prosecuted
an appeal in error.
The proof establishes that the nCte was made by
WitherspOOn, in the absence Of Douglass, and with
ont his knowledge that the consideration of the note
was Sl2O0,00 in money, borrowed on the credit and
applied to the use OF said firm-which was com
posed Of the defendant and WitherspoOn.
The loan was really made and the money adj
Yanced, by the plaintiff, through her agent At the
time of the loan, and the execution Of said note a
UeTbal agreement made, that interest the rate
of two and half per cent per month, should be
paid on the amount Of the note; but the note was
taken only for the amount Of the money, actually
advanced to Witherspoon.
The Court instructed the jury, that the verbal
agreement of WtherspoOn, with the plaintiff in the
absence, and without the knowledge of his copart-
ner, the defendant to pay two and half per cent
month"; for the use of 1920 90 made the whole con
tract illegal and void; and The plaintiff could not,
therefore, recover on the note against Douglass.
This instruction, we think, is erroneous. The
case Of HutcheDs U.s. Land, Hump. 4l5, does not
sustainthe charge. In thatcase the usuriOus interest
agreed on, was incorporated in and formed part of
the nominal amount Of the note sued on; such is not
the present case Here the note was for the actual
amount of the loan. And inasmuch as. by our law
the effect Of usury is only to avoid the contract TO
the extent OF the excess beyond the legal rate Of
interest, it follows that there be valid obee
ton to recovery on the note. The collateral nde-
pendent verbal agreement for usurious interest on
the oan does not IN any way effect the validity Of
the note This latter agreement though illegal and
void, is in legal contemplation separate, and dis
tinct from the contract evidenced by tine note. The
case, therefore is wholly unlike the case of Hutch
ins U.s. Land. In the one case, the note itself was
tainted with usury, IN the other the note is free
from any such taint
As regards the competency Of Montgomery the
payer and endO1 ser of the for anything APP
pearng in the record before US. we perceive no OBJ
lection to his competency. 2Greenleat Ev. sec 20I.
Judgment reversed. MCKINNEY.
Test NJ. D. WEIGH, Clerk.
JIM. Fletcher vs.. Coleman and wife ard Others
Vance sold to Hanna lot 23O in Memphis and took.
his note for the purchase money in IS47, reserving
in the deed lien. In lS49 Hanna sold and conveyed
part Of the lot to Antwine, who in 1858 conveyed
the same to Martha A., wife of Walter Coleman,
with authority to her, by JOINT deed with her hus-
band, TO dispose of the same. This power was ex-
ercised by her with her husband in 1855 by sale to
complainant Fletcher for the consideration of $780,
with covenants of warranty; after this the original
vendor Vance fled bill to enforce his lien for the
purchase money. A decree was made in his favor,
the whole lot sold and purchased by Ed. YergeP as
trustee for Mrs. Coleman, at Sll75. Defendants,
Ptman and Taylor, became the suretes in note at
seven months for the amount Of the bid By ar
rangement between the parties, the sureties were
substituted as the buyers and upon payment of the
note obtained the title Ii is in charge that they
| gave Mrs. Coleman bonus Of one thousand dollars
/ Tor the privilege of substitution.
This bill is filed by Fletcher to assert his right to
/ the title obtained by Mrs Coleman at the Chancery
/ sale, by way of enurement, as the title, conveyed
by her and her husband to by their deed, with
/ warranty in 1854, has thus failed.
! 1t is charged that the Intervention Of trustee
and the substitution of Pitman and Taylor, were all
fraudulent contrITances 70 defeat the complainant
in his right to the benefit Of the title acquired BY
/ her as the best bidder at the Chancery sale. The
demurrer to this bill was sustained and we think
correctly.
The wife was not liable in the warranty in the
JOINT deed to Fletcher 1t could only affect he- BY
way Of est0ppe if she attempted to assert any title
in opposition TO the one thus warranted. It would
prohibit others from acting as trustees for her
and thereby securing for her benefit She did not
/ in any view, by the facts stated, become - with
a title that could enure to others for any purpose
The ncipient state, By bidding Off the property had
only been taken. and without having paid anT money
towards the consideration. The benefit passed to
! those who were bound sureties for the bid and
Thea by paying It, properly became invested with the
title. That she obtained bonus of SI0e0 in the
| transaction can make no difference whatever The
only ground upon which the complainant can 20 in
this case IS that the vest title obtained by her
vendor under this sale and that it should in eouitv
enure to him. in aid of the defective title before ac-
quired from her That principle is certainly COR
rect when it applies. But no title ever accrued to
her, or any one for her benefit nor did she ever
pay any thing for it. She preferred the $4,000 ia
getting the title by paying the Sll75. The true
title then passed to Pitma and Taylor and the com
plainant must rely on his warranty for hls loss.
1t is also objected that the sale Is not GOOD under
the Chancery decree, as to the complainant because
he was not a party. That was not material The
| vendors lien Is fixed upon the Ernd and he can en-.
force 1t without making all who may have bought
it from or under his vendee parties He has only tC
do with the thing sold, and his debtor for thu
price IL Is not necessary to cucumber such eases
with intervening purchasers, and thereby increase
HE burthen by accumulation of costs.
Affirm the decree. CAnUrBgns
Test: ~ D. WELCH Clerk