A. D. BENTON
v.
W. C. WILKINS
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This is an appeal from a foreclosure decree where the defendant claimed the underlying mortgage was usurious. The Florida Supreme Court affirmed the trial court's finding that the usury defense was not established by clear and satisfactory evidence.
The chancellor's factual findings regarding the usury defense will not be disturbed on appeal because they were supported by substantial evidence and did not proceed from consideration of the evidence in light of inapplicable legal principles. Usury as a defense must be established by clear and satisfactory evidence, which the defendant failed to do here.
“where the appeal is based on a question of fact in a chancery case, the findings of fact by the chancellor will not be disturbed on appeal where not clearly erroneous or where they did not proceed from consideration of the evidence in light of inapplicable principles of law”
Establishes the appellate standard of review for factual findings in chancery cases
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Join FLexlaw to unlock all legal intelligenceA foreclosure action was brought by the complainant against the defendant. The defendant raised a timely defense of usury, claiming the mortgage terms…
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The appeal is from a decree of foreclosure. The contention of appellant is that the decree should have been in favor of the defendant on the theory that the defendant’s defense of usury had been sutained by proof and that the mortgage should have been cancelled and the defendant should have had a decree against the complainant for double the amount of interest reserved and paid to the plaintiff.
The defense was timely made and was the issue tried by the chancellor. There was substantial evidence supporting the defendant’s contention, but there was also ample substantial evidence to warrant the chancellor in finding in favor of complainant.
It is well settled in this jurisdiction that where the appeal is based on a question of fact in a chancery case, the findings of fact by the chancellor will not be disturbed on appeal where not clearly erroneous or where they did not proceed from consideration of the evidence in light of inapplicable principles of law. Wicker v. Trust Co. of Fla., 109 Fla. *493411, 147 Sou. 586; Palm Beach Estates v. Croker, 106 Fla. 617, 143 Sou. 792, and cases there cited. In the final decree the chancellor says: “The court is of the opinion that the defense of usury has not been sutained or proved.” Where usury is interposed as the defense to avoid or to defeat an obligation to pay money, such defense must be established by clear and satisfactory evidence. Wicker v. Trust Co. of Fla., supra, 27 R. C. L. 268.
In observance of the foregoing enunciation, the decree should be affirmed.
So ordered.
Affirmed.
Ellis, P. J., and Terrell, J., concur.
Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgment.
(concurring).-—-I concur in the opinion and result, but think that some special comment is due in commendation of the very excellent manner in which the counsel for appellant has caused the transcript of the record to be prepared and indexed. A properly prepared transcript of the record is an invaluable asset to the presentation and consideration of an appeal. An index of the contents of such record, such as was adopted and used in this case, is of incalculable value in conserving the time of the judges who are called on to inspect it in connection with their study of the case. I make this observation because I think an expression of special commendation for the excellent transcript in this particular case is warranted.
Davis, J.
(concurring).-—-I concur in the opinion and result, but think that some special comment is due in commendation of the very excellent manner in which the counsel for appellant has caused the transcript of the record to be prepared and indexed. A properly prepared transcript of the record is an invaluable asset to the presentation and consideration of an appeal. An index of the contents of such record, such as was adopted and used in this case, is of incalculable value in conserving the time of the judges who are called on to inspect it in connection with their study of the case. I make this observation because I think an expression of special commendation for the excellent transcript in this particular case is warranted.
Cases With Similar Vibessemantic neighbors from the corpus
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Mrs. Jesse Sewell Jones v. Hammock, 131 Fla. 321 (Fla. 1937)…ofits of approximately $4,000,00, as well as the payment of several hundred dollars of interest on the mortgage debt paid by the parties who assumed it. This Court has held in an action where usury was interposed as a defense, in Benton v. Wilkins, 118 Fla. 491, 159 So. 518, that: [*328] “Defense of usury, where interposed to avoid or defeat obligation to pay money, must be established by .clear and satisfactory evidence.” This brings us- to the question before the Court as to whether or not lenders are p…
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Dixon v. Sharp, 276 So. 2d 817 (Fla. 1973)…State v. Clark, 29 N.J.Law 96.” He who alleges usury to avoid or to defeat an obligation to pay money must establish his charge by clear and satisfactory evidence. Wicker v. Trust Co. of Florida, 109 Fla. 411, 147 So. 586 (1933); Benton v. Wilkins, 118 Fla. 491, 159 So. 518 (1935); Shaffran v. Holness, 102 So. 2d 35 (Fla.App.1958); Diversified Enterprises, Inc. v. West, 141 So. 2d 27 (Fla.App.1962). Originally the trial court in the instant case determined that there was insufficient evidence to show that…1 / 2
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Stewart v. Nangle, 103 So. 2d 649 (Fla. 2d DCA 1958)…t the terms of the contract originated with Chandler, that Kendrick never intended to charge nor did he ever claim but the $7,250 actually loaned.’ ** “This court has held in an action where usury was interposed as a defense, in Benton v. Wilkins, 118 Fla. 491, 159 So. 518, that: “ ‘Defense of usury, where interposed to avoid or defeat obligation to pay money, must be established by clear and satisfactory evidence.’ ” In a case recently decided by this court, Shaffran v. Holness, Fla.App.1958, 102 So. 2…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Palm Beach Ests. v. Bula E. Croker, 106 Fla. 617 (Fla. 1932)
- Cyrus H. Wicker v. Tr. Co. of Fla., 109 Fla. 411 (Fla. 1933)