Opinion
13976.
MARCH 10, 1942.
Equitable petition. Before Judge Humphries. Fulton superior court. September 13, 1941.
Lowndes Calhoun, for plaintiff in error. Clarke Clarke, contra.
1. Under the allegations of the petition as amended, and the undisputed evidence in the case, the defendant in error was incorporated as a building and loan association, its charter accepted by the stockholders, and all of its transactions with the plaintiff in error were in compliance with the provisions of the Code, § 16-101, which authorizes such associations to lend money to persons not members thereof, nor shareholders therein, at eight per cent. or less, and to aggregate the principal and interest at the date of the loan for the entire period of the loan, and to divide the sum of the principal and the interest for the entire period of the loan into monthly installments, and to take as security therefor real estate situated in the county in which such building and loan association is located. Thus the transaction in this case was not usurious. Nothing here ruled is in conflict with the rulings made by this court on a former hearing, in Kent v. Hibernia Savings, Building Loan Association, 190 Ga. 764 ( 10 S.E.2d 759), in view of the subsequent amendment of the petition and the evidence to support the same.
2. There was evidence to support the finding of the jury in favor of the plaintiff, and the court did not err in refusing a new trial.
Judgment affirmed. All Justices concur.
No. 13976. MARCH 10, 1942.
Hibernia Savings, Building and Loan Association, alleging that it was a corporation of Fulton County, Georgia, and that it was the owner of described real estate in said county, filed its petition against H. H. Kent, and prayed for judgment against him on account of his conduct in trespassing upon and preventing it from renting said property, and that he be temporarily and permanently enjoined from molesting plaintiff's tenants, workmen, renting agents and employees in and about said premises. The defendant, while admitting most if not all of the allegations of interference, averred that he and not the plaintiff was the true owner of the realty in question; that he was given no notice of the public sale under the alleged power of sale contained in a deed to secure debt executed by him, he denying that he signed any paper delegating such power to plaintiff; and particularly defendant charged usury in his transaction with the plaintiff from whom he borrowed the money and executed notes secured by a deed to the property in question.
Defendant in his answer and cross-action charged acts of trespass against the plaintiff by breaking into his house and tearing down signs placed there by him, and by placing lumber in a garage owned by him, entirely separate and apart from the real estate in question, thus preventing him from renting the same.
Upon the first trial the court directed a verdict in favor of the plaintiff. On writ of error the judgment of the trial court was reversed, this court holding that under the allegations of the petition, and the evidence submitted, the loan transaction, defendant's failure to comply with which resulted in the public sale and purchase by the plaintiff, was usurious, being in violation of the law as contained in the Code, §§ 57-101, 57-116; that the petition merely alleged that plaintiff was a corporation, and that there was no evidence to show that it was chartered as a building and loan association, or that its transactions with the defendant were made by it in that capacity. Whereupon the plaintiff amended its petition by alleging the year it was incorporated, that its charter was accepted by the stockholders, and that in all transactions between it and the defendant it acted in that capacity. There was no denial of this allegation by any pleading or evidence, and at the trial evidence was submitted confirming this allegation. The case was submitted to a jury, who returned a verdict in favor of the plaintiff. A motion for new trial, containing only the general grounds, was overruled, and the defendant excepted.