Brown v. Wilcox , 15 Iowa 414 ( 1863 )

Wright, J.

This case involves a construction of section 1792 of the Bevision, which declares that “ nothing in this act shall be so construed as to prevent the proper Iona fide assignee of any usurious contract recovering against the usurer, the full amount of the consideration paid by him for such contract, less the amount of the principal money; but the same may be recovered of such usurer in the proper action, before any court having competent jurisdiction.”

That Sawyer, under the facts disclosed in this answer, could not recover of defendant, in virtue of the provisions of this statute, we think is quite clear. He is certainly not a bona fide assignee. Taking the answer as true, he bought with full knowledge of the usury, and can claim no protection under the statute.

We remark also, that as the answer denies that plaintiff took the notes without knowledge of the usury, he occupies no better position. But suppose he acted or bought these notes in ignorance of the usurious taint, can he recover of Wilcox? It seems to the majority of the Court that plaintiff’s remedy is against Sawyer alone, who had knowledge of the usury; took new notes including the whole usury previously reserved, and sold the same for a full and valuable consideration. Defendant never transferred these notes to Sawyer and never received anything for them.

Whether defendant as a usurer, could be made liable to any subsequent bona fide holder (supposing the original notes not to have been surrendered), for the amount paid by such holder to the assignee of the usurer, less the “ principal moneyor in other words, whether his liability is measured by what he receives, and not by what his assignee may receive, is a question of some doubt under the statute, and one not necessary to determine under the facts disclosed by the pleadings in this case. Nor for the same reason is it necessary to decide whether he is liable under the statute to any one but his immediate assignee.

We put the case upon the grounds above stated, and think the demurrer was properly overruled.