Matzenbaugh v. Troup

Decided May 28, 1890

Appellate Court of Illinois · decided 1890-05-28

Usura—Mortgages—Foreclosure—Attorney's Fees—Agency—Pleading —Evidence. 1. In a foreclosure suit this court holds that the evidence warranted a finding of usury. 2. A provision in a mortgage for payment of an attorney’s fee in case of foreclosure is not usurious. 3. The makers of a note secured by mortgage, who have conveyed the mortgaged premises, may plead usury in a suit to foreclose. 4. A usurious note is binding as to all except the interest, and the mortgage securing it as to all its provisions, except the interest reserved in the note. 5. Where the agent who makes a usurious loan is a general agent, his principal is held to notice of the usury.

Cited by 2 later decisions — most recently October 1931

2 state decisions

Relies on Barton v. Farmers & Merchants' National Bank · Leonard v. Patton · Wilday v. Morrison

Good law ✅— No negative treatment on recordhow we know

Decided 1890-05-28

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Smith, J.

¶1I concur with a majority of the court in all respects except as to the attorney’s fees. I think the Circuit Court properly refused to allow that part of complainant’s demands. This case differs from Barton v. The Bank, 122 Ill. 352; there it was attempted to be shown that the attorneys for usurer caused the usury, but the court held otherwise. Here the usury exists outside of and independent of the attorney’s fees claimed, and this bill is an attempt to enforce an unlawful and illegal demand in so far as it is usurious.

¶2I do not think attorney’s fees can be collected by a party who is attempting to enforce an illegal demand either in whole or in part. 66 Ill. 535; 89 Ill. 125; 106 Ill. 99; 5 Ill. App. 433.