R. R. MAC MAHON
v.
MARY N. PARKER, INDIVIDUALLY AND AS ADMINISTRATOR AD LITEM OF ALICE A. NICHOLSON, DECEASED, ET AL.
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A Florida Supreme Court case addressing whether a note and mortgage should be cancelled due to usury violations. The court affirmed the lower court's decision cancelling the note and mortgage, rejecting arguments that the lender should be subrogated to a prior mortgagee's rights and that the usury defense was barred by laches.
The court affirmed the cancellation of the note and mortgage based on violation of Section 6942 with no mitigating circumstances. Subrogation was not available because no facts warranted its invocation. The laches defense failed because the lender's delay, unaccompanied by any agreement of extension or other indulgence, did not remove the taint of usury.
“Section 6942, Compiled General Laws of 1927, is shown to have been violated and there are no mitigating circumstances.”
Establishes the basis for affirming the cancellation of the usurious note and mortgage.
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Join FLexlaw to unlock all legal intelligenceR. R. Mac Mahon loaned money to the borrower on a note secured by mortgage. The borrowed funds were used to discharge a prior mortgage on the borrower…
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This appeal is from a final decree holding a note and mortgage to be usurious and cancelling both of record as authorized by Section 6942, Compiled General Laws of 1927. It is contended (1) that the judgment should be reversed because the evidence does not prove the charge of usury as alleged, (2) that even if usury was proven, the money loaned was used to discharge a mortgage on the borrower’s lands held by a third person and being so, appellant should be subrogated to the rights of appellees in the mortgage. (3) The defense of usury if ever available *773to defendants, was barred by laches when the suit was brought.
On the question of proof, it is sufficient to say that the evidence has been reviewed and while it is in conflict on some material points, there is ample affirmative evidence if believed to support the decree of the chancellor. No reason for reversal is shown on this point. Section 6942, Compiled General Laws of 1927, is shown to have been violated and there are no mitigating circumstances.
On the question .of subrogation, we fail to find any facts whatever that would warrant the invocation of that doctrine in this case. In answer to the defense of laches, it is quite true that appellant waited several years to bring his suit to foreclose the mortgage but in the meantime, there was no agreement of extension and no other transaction or indulgence took place that would remove or tend to remove the taint of usury.
The judgment below is therefore affirmed.
Affirmed.
Buford and Thomas, J. J., concur.
Brown, J., concurs in opinion and judgment.
Justices Whitfield and Chapman not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Beekner v. L. P. Kaufman, Inc., 145 Fla. 152 (Fla. 1940)…ure of usury statute is barred by the two-year statute of limitations” — and cited Hagan v. Neeb, 105 Fla. 297, 140 So. 916, and Jones v. Hammock, 131 Fla. 321 179 So. 674, but he also held that the defense was not lost by laches. McMahon v. Parker, 138 Fla. 772, 190 So. 247. Concisely stated, the question is: Should the defense - of usury as defined in Section 6942, C. G. L., be denied because of the provisions of Section 4663, C. G. L. ? The appellees do not take the position that statutes of [*156] lim…
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Shelley v. White, 11 Fla. Supp. 107 (Pinellas Cty. Civ. & Crim. Ct. Rec. 1957)…f usury is not barred by the two year statute (although affirmative action is) — upon the theory that a defense to a cause of action should survive as long as the cause of action itself. [*112] See Jones v. Hammock, supra; MacMahon v. Parker (Fla.), 190 So. 247, and cases cited therein. It is further ordered that the defendant-counterclaimant’s motion for summary judgment is denied.…