Summary
In Meroney v. Building and Loan Asso., 112 N.C. 842, it was said by this Court that "if it is true, as plaintiff alleges, that the contract set out in the complaint was made payable in the State of Georgia to avoid the usury laws of this State, that contract will be adjudged to be usurious, whatever may be the law of that State."
Summary of this case from Ripple v. Mortgage Corp.Opinion
(February Term, 1893.)
Usury — Conflict of Laws — Mortgage — Injunction.
1. A contract, if made payable in another State to avoid the usury laws in this State, will be adjudged usurious, whatever may be the law of that State.
2. Where, in an action to redeem a mortgage on realty under which the trustee has advertised the land for sale, the complaint alleges that the contract, to secure which the mortgage was given, is usurious and was made payable in another State to avoid the usury laws of this State, there is a "serious issue" between the parties which entitles the plaintiff to an order restraining the sale until the hearing.
ACTION, returnable to Spring Term, 1892, of CHEROKEE, to redeem a mortgage on realty situated in said county, given by plaintiff to defendant to secure a loan of three hundred dollars. The matter was heard on application by plaintiff for restraining order prohibiting a sale of said realty by defendant under the mortgage. The restraining order was granted, returnable on 23 May, 1892, and on application of both parties for a time to file further affidavits was continued and heard by consent before Hoke, J., at chambers, on 23 June, 1892.
J. W. Cooper for plaintiff. (845)
J. W. Hinsdale and Batchelor Devereux for defendants.
If it is true, as the plaintiff alleges, that the contract set out in the complaint was made payable in the State of Georgia to avoid the usury laws of this State, that contract will be adjudged to be usurious, whatever may be the law of that State. There is, therefore, a "serious issue" between the parties which, under the rule established by Whitaker v. Hill, 96 N.C. 2; Harrison v. Bray, 92 N.C. 488, and Davis v. Lassiter, ante, 128, entitles the plaintiff to have the restraining order continued in force to the hearing.
AFFIRMED.