Page Robertson, Edelhoff v. (145 U. S. 636).... 980 Robson, Marine v. (145 U. S. 645).. ... 988 103 862 118 Sioux City & P. Ry. Co. v. Smith (145 U. S. 987 ..... 987 .......... 353 ..... ....... Ruggles, United States v. (145 U. S. 660)... Rumford Chemical Works v. Muth (145 U. 990 S. 652)... Smith, Chicago, B. & Q. R. Co. v. (145 U. 743 S. 631). 978 919 Smith, Chicago, M. & St. P. Ry. Co. v. (145 U. S. 632). 978 Smith, Chicago, R. I. & P. Ry. Co. v. (145 U. S. 632).. 978 St. John v. City of Toledo (145 U. S. 652).. 987 St. Joseph & St. L. R. Co. v. Humphreys (145 U. S. 105). 795 St. Louis, I. M. & S. Ry. Co. v. Humphreys (145 U. S. 652). 987 St. Louis, I. M. & S. Ry. Co. v. Johnson (141 U. S. 602). Smyth v. New Orleans Canal & Banking Co. (141 U. S. 656).. 113 St. Louis, V. & T. H. R. Co. v. Terre Haute & I. R. Co. (145 U. S. 393). South Branch Lumber Co. v. Ott (142 U. S. 671 United States v. Wilson (144 U. S. 24).. ... 977 435 646 173 991 Western Union Tel. Co., Attorney General 991 400 239 768 United States, Adams v. (145 U. S. 627).... 239 Waterbury, Barney v. (145 U. S. 628).. 336 511 464 United States, Thompson v. (142 U. S. 471) 299 Unsell, Hartford Life & Annuity Ins. Co. v. (144 U. S. 439). 84 188 Wiggins Ferry Co. v. Ohio & M. Ry. Co. Williams v. Glenn, two cases (145 U. S. Williams v. Williams (145 U. S. 661).. 832 818 94 991 991 991 541 235 Upton, Larkin v. (144 U. S. 19). ..... 614 Valentine, Meehan v. (145 U. S. 611)....... 972 181 Winona & St. P. R. Co. v. Town of Elgin (143 U. S. 371)... 530 Vermont, O'Neil v. (144 U. S. 323) 693 Winona & St. P. R. Co. v. Town of Plainview (143 U. S. 371).. 530 Vulcanite Pavement Co., American Arti ficial Stone Pavement Co. v. (145 U. S. 628).... Winter's Adm'r, New York, L. E. & W. R. 356 239 Wise v. Bennett (145 U. S. 662). 991 Witten, United States v., two cases (143 U. S. 76)... 372 990 980 Wood, Berry v. (145 U. S. 629)... 977 991 417 Woods, Lang v. (145 U. S. 644). 983 468 Warner, Matthews v. (145 U. S. 475).. 945 Woodson, Mutual Reserve Fund Life Ass'n v. (145 U. S. 648)... 985 Washburn & Moen Manuf'g Co. v Wiler Yerkes, Sparhawk v. (142 U. S. 1)........................ 104 CASES ARGUED AND DETERMINED IN THE UNITED STATES SUPREME COURT. OCTOBER TERM, 1891. (141 U. S. 384) 1 Where a person agrees with a trust company to procure and forward applications for loans, with the understanding that he shall receive no compensation from it, but is to obtain his remuneration from borrowers, and he thereafter, in communications to the company and others, styles himself as agent for it, he must be so considered; and under the law in Illinois a payment to him of a commission by the borrower for securing a loan from the company at the highest legal rate makes the transaction usurious. Payne v. Newcomb, 100 Ill. 611, followed. 2. In 1873, a loan in Illinois at 10 per cent.the highest lawful rate-was not rendered unlawful by exacting 3 per cent. thereof in advance. 3. In an action in Illinois to recover money loaned at an usurious rate, the whole interest being there forfeitable for usury, the debtor is entitled to have all payments on account of interest applied in diminution of such part of the principal as remains unpaid. 4. Act Ill. Feb. 12, 1857, provides that where any contract or loan shall be made in this state, "or between citizens of this state or any other state or country, bearing interest at a rate which is lawful in this state, "it shall be lawful to make the amount of principal and interest of such contract or loan payable in any other state," etc. Act Feb. 16, 1857, § 14, provides that it shall be lawful for any person borrowing money in this state to make notes and other securities, for the payment of interest at the rates authorized by the laws of this state, payable at any place where the parties may agree, although the fegal rate in such place may be less than in this state. Held, that where a loan obtained by a citizen of Illinois from a New York corporation upen bonds made in Illinois, and secured by mortgages upon land situated therein, was for a rate of Interest lawful in that state, the rate was lawful, though the loan was payable in New York, where such a rate was usurious. 5. A transcript on appeal showed that on the entry of the decree a motion was made for a re v.12s.c.-1 hearing, but failed to show any disposition thereof at the same term; that at the next term an order was made setting the cause for hearing; and that shortly afterwards an order was entered nunc pro tunc granting the rehearing. Held, that it must be presumed that this order was made in accordance with the fact, and that a rehearing was actually granted at the trial term. 6. A trust-deed, which provides that on a sale of the lands by the trustee at public auction, upon advertisement, all costs, charges, and expenses, including commissions, such as are at the time of sale allowed to sheriffs on execution sales, shall be paid out of the proceeds, gives no right to a solicitor's fee upon a foreclosure by suit, although this proceeding is made necessary by the refusal of the trustee to act. Appeals from the circuit court of the United States for the southern district of Illinois. By deed, bearing date November 1, 1873, and acknowledged and filed for record February 23, 1874, Edwin S. Fowler-his wife, Sophie Fowler, uniting with himconveyed to Jonathan Edwards, in feesimple, certain real estate in the city of Springfield, Ill., in trust to secure the payment of the principal and interest of nine bonds, of $1,000 each, executed by Fowler to the Equitable Trust Company, a Connecticut corporation, and payable, principal and interest, at its office in the city of New York; the principal, five years after date, and the interest, semi-annually, at the rate of 7 per cent. per annum. The deed recited that the bonds were given to secure a loan of $9,000, payable five years after date thereof, with interest at 10 per cent. per annum, of which 7 per cent. per annum was secured by the deed of trust, and was to be paid as in the bond provided; and the balance, to-wit, 3 per cent. per annum, was "discounted, and paid at the time of the execution of the deed. In case of default in paying the principal or interest as each matured, or of failure to keep and perform the covenants of the deed, or any of them, the trus tee was authorized to sell at public auction, after advertisement, to the highest bidder *387 for cash, and with or without previous entry upon the premises, the right and equity of redemption of the grantors, and out of the proceeds of sale to pay the costs, charges, and expenses of the advertisement, sale, and conveyance, "including commissions, such as are, at the time of such sale, allowed by the laws of Illinois to sheriffs on sale of real estate on execution," all sums paid by the trustee for insurance and taxes, with 10 per cent. interest thereon from time of payment, the principal and the accrued interest remaining unpaid at the time of sale, and to Fowler any balance remaining. The present suit was brought October 26, 1882, to foreclose the defendants' right and equity of redemption, and for a sale of the mortgaged property to raise such sum as might be due the mortgagee. Fowler, by his answer, put the plaintiff upon proof of the averments of the bill, and made defense upon several grounds; *but the original answer is important only as alleging that the loan was usurious, and was consummated in the manner it was with intent to evade the statutes of Illinois relating to interest. terest on each sum, from date of the decree, at the rate of 6 per cent. per annum. The mortgaged property was ordered to be sold to raise the above aggregate amount found to be due, with such interest, and the costs of the suit. From that decree each party has prosecuted an appeal; the defendants insisting that no decree, for any amount, should have gone against them, while the plaintiff insists that the decree should have been for a larger amount. R. G. Ingersoll and Wm. Richie, for the Fowlers. W. L. Gross, for Equitable Trust Company. *Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court. 1. The appellant Fowler contends that, as no order was made at the term when the first decree was entered continuing until the succeeding term the motion and petition for rehearing, the decree of October 20, 1884, became final, and, consequently, the order at the June term, 1885 entered as of October 31, 1884, which granted a rehearing, as well as the decree 7 January 11, 1887, are to be treated as improvidently made, or as nullities. We do not concur in this view. It is not disputed that if, in October, 1884, a rehearing was granted, and the clerk omitted to enter an order to that effect, it would have been within the power of the court, at the succeeding term, by an order nunc pro tunc to make the record speak the truth. But as the order granting a rehearing was entered under date of October 31, 1884, the presumption must be indulged, in support of the action of a court having jurisdiction of the parties and the subject-matter, The plaintiff filed a general replication; and, subsequently, the defendants, by leave of the court, amended their answer, stating more fully the grounds upon which they based the defense of usury. They also alleged that the contract of loan was and is a New York contract, and that by the statutes of that state it was usurious, in that the interest contracted to be received by the plaintiff, having regard to the amount actually advanced by it, was In excess of 7 per cent. per annum,-the rate established by the laws of New York. Of those statutes they claimed the benefit.-nothing to the contrary affirmatively By a decree passed October 20, 1884, the court below found the amount due from Fowler to be only $2,980.67 on the bonds, and $270.94, insurance and taxes paid by the plaintiff, with interest thereon; in all, $3,251.61. At the foot of that decree were these orders: "And thereupon the complainant entered its motion for a rehearing before a full bench. "Whereupon, on said 20th day of October of the year last aforesaid, [1884,] came the complainant, by its solicitor, and tiled in the clerk's office of said court its motion and petition for a rehearing in this cause, which motion and petition are as follows," etc. Following the above, in the transcript, are the written motion and petition for rehearing. On the 8th of June, 1885,-the succeeding term, the cause was set for hearing on the 29th of that month before what is called a full bench. Then appears an order, under date of June 30, 1885, entered as of October 31, 1884, granting the rehearing asked. To that order the defendants excepted. By the final decree of January 11, 1887, the sum of $8,150.79 was adjudged to be due the trust company, of which $7,809.69 was found to be the sum actually advanced by it to Fowler, and $341.10 was the amount of insurance and taxes on the property paid by the company, with in appearing,-that the facts existed which justified its action; and, therefore, that the court granted the application for a rehearing at the term at which the first decree was rendered. Stockton v. Bishop, 4 How. 155, 167; Townsend v. Jemison, 7 How. 706, 718. Besides, the exception tak. en by the defendants to the proceedings of June 30, 1885, was not, in terms, that the order, then formally made, was directed to be entered as of October 31, 1884, but that it granted a rehearing. If they intended to deny that the rehearing had been in fact ordered at the previous term of the court, the point should have been distinctly made upon the record. 2. The appellants, Fowler and wife, also contend that the contract of loan was a New York contract, and void under the laws of that state; and that neither the debt thus created, nor the mortgage giv. en to secure the bonds, can be recognized, nor any recovery thereon had, in Illinois or elsewhere, for principal or interest. This contention rests upon the statute of New York, in force when the debt was cre ated, providing that all bonds, bills, notes, assurances, conveyances, and all other contracts or securities whatsoever, where upon or whereby there shall be reserved or taken, or secured, or agreed to be reserved or taken, any greater sum or greater value, for the loan or forbearance of any money, goods, or things in action, than at the rate of 7 per cent. per annum, shall be *393 |