Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-03-22
COURT DECISIONS.
DIGESTED BY W. B. MARTIN.
EXCLUSIVELY FOR
vIRclNlAN- pILoT.
Notes Of Cases Recently Decided,
Which are Of Interest 10
Our People.
WALLACE V. LIPPs.

Supreme Court of Appeals, West Va.
December . 1899
AN ENDORSER WHO HAS KNOWL-
EDGE OF THE UsURY, AND
VOLUNTARY PAYS 1T, CANNOT
AFTERWARDS RECOVER IT OF
HIS PRINCIPAL.
The Court says:
The appellants rely on the fact that
the defendant Lips on March 81 1885
executed Il deed OF trust on Il portion
OF his real estate 10 indemnify and
save them harmless as indorsers on
said notes. and that they had paid in
full the notes endorsed by them, re-
sEcctlvcly, after the execution of said
decd OF trust. Now, our statute pro-
vides that 'all contracts and assur-
ances made directly or Indirectly for
the loan OF forbearance of money or
other thing at greater rate of in
tcrest than six per cent. except where
such greater rate is now allowed by
law, shall be void as to any excess OF
interest agreed to he paid above that
rate and no furthcr."Thc amounts paid
by these endorscrs were paid volun-
tarily. The notes so far as they called
for interest in excess of six per cent.
were void under the statute, and could
not have been enforced either against
Lips or said cndorscrs. Either Of
them could have defeated the colicc-
ton of such excess by pleading usury
but they elected 10 pay the same and
now seek TO recover ii from the estate
oil l.ipps. The lax requires the per-
Sonal representative to protect his eS-
tate by relying upon the plea OF uSury.
which has been done in this case.
Does the fact that said deed OF trust
was executed by Lipps. who conveyed
tho land I'm trust to secure indem-
nifty and tn save harmless said cndnr-
scrs upon the notes therein described
or the renewals Of the same. in whole
or In part, cntiilc said endorsers to re-
cover. out of the proceeds arising from
said trust property, the excess of in
tercSt over SIX per cent paid by them
to the Bank Of I.cwisburg? If this was
allowed In be done. there is nothing to
prevent the officers of the bank, when
making a loan of this character. from
requiring the iniorsers 10 secure them
selves by deed of trust on the rcnl es-
tate of the party making the paper
and then collecting the excess from the
indorHcrs at maturity Of the note. and
allowing them to reimburse themselves
out OF the proceeds OF their trust, and
tl!c Isury law would be defeated. In
Minis :. Mcdowell. 4 Ga. 49, it was
said Where the security to "a promis-
sorry note was Unidentified by mort
gage executed by his principal. and
after the note became due the security
voluntarily gave his own note to the
creditor, which was accepted by him
I'm full payment of the joint debt. and
the joint note given up to the security,
held, that the security might fOrcclosc
his mortgage against his principal
ana collect from him what was ac-
tually due on the note in the hands
OF the original creditor. and that the
principal debtor was entitled to make
any defense to the note which he
could have made against such original.
Peck, Ga 40. 1t was held: III the
surety have knowledge of the usury
and voluntarily pay it, he cannot af-
tcrv ards recover 1t OF his principal"
To the Same effect. sec Jones V. Joy
ner. Ga $50 In view Of these au
thoritics. we must hold that the de-
PENDANT Lips could successfully in
tcrposc the plea OF usury to the claims
OF said cndorscrs. and thus defeat the
excess OF interest.