Bush v. Livingston , 2 Cai. Cas. 66 ( 1805 )

Per curiamdelivered by Spencer, J.

The appellant’s counsel have insisted on the argument,

1st. That so much oí Livingston's answer as charges the appellant with usury, is not evidence, and is to be proved aliunde.

2d. That the order of the chancellor, in leaving at large, what part of the answer was to be read, is therein erroneous.

3d. That if Livingston’s answer is 'to be received as evidence, in toto, the charge of usury is not, in law, established.

4th. That an issue ought not to have been directed in consequence of contradictions, between Livingston and his own witness, Evertson.

5th. That the whole merits of the case being be» fore this court, it will decide thereon definitively* and remit the cause to be carried into execution';

The counsel for the respondents have combatted these propositions, and insisted,

1st. That, independent of Livingston’s answer, the fact of usury is made out.

2d. That from the state of proceedings, in relation to Townsend, the charge of usury is established;

3d. That from Livingston’s bankruptcy he can now be rendered a competent witness, and, therefore* an issue ought to be directed.

' In investigating this cause, several of the points raised will not be examined, as a decision on them would be superfluous, from the view I have taken of the subject. It appears to me, from the authorities I have consulted, that, admitting Livingston’s answer in relation to the usury to be evidence, and to stand uneontradicted, I still must maintain, that there existed no usury as applicable to the bonds and mortgages assigned to the appellant; and that, whether the answer is or is not evidence, still, that with respect to the excess of the 5,600 dollars paid by the appellant to Evertson, the testimony of the latter, and the admissions in the bill, show that the appellant cannot recover it.

I now proceed to examine whether the transactions stated in Livingston’s answer, will, under the notion of usury, deprive the appellant of his right to hold the mortgages assigned to him as a security for 5,600 dollars, and the legal interest which has since accrued thereon. In the research I have made, I have met with no authoritjY'or even dictum, that a security for the payment of money, in its inception uncontaminated with usury, can, by an ex post facto agreement for a receipt of a greater sum than the statute allows for forbearance, be rendered usurious. In the case read by the respondents’ counsel, from 5 Bac. Abr. 419, pl. 6, there was a renewed obligation, in which the usury and the bona fide debt were consolidated, and there it was held to be usurious. But this case is not law, as wall, I think, be hereafter shown.

The first essential to usury is, that there be a loan. Hawkins, in 2 vol. 373, sec. 1, says, “ that it is a contract, on the loan of money, to give the lender a certain profit for the use of it upon all events, whether the borrower make any advantage of it or not, or the lender suffer any prejudice.” It is true, that it may take place in relation to the rent of lands, or the sale of goods, but, as applicable to this case, an inquiry into usury of that kind cannot be necessary.

It is true, that the appellant, Livingston, and the witness, Evertson, speak of the money paid by the former to the latter, as a loan from Bush to Livingston. The transaction, however, must decide that point, and not the expressions and language of the parties. Bush says, that Evertson having demanded payment of his debt, Livingston applied to him, and requested him to lend him a sum sufficient for that purpose, and offered to secure the repayment thereof, by procuring an assignment to Bush from Evertson ; and that, accordingly, on the 22d of July, 1799, the assignments were made in due form of law. Livingston states, that, being urged by his necessities, he applied to Bush to borrow a sum of money to pay off the bonds and mortgages, and that Bush, taking advantage of his necessities, offered to loan him 5,600 dollars for ninety days, if he would allow him for the forbearance 400 do1Iars~ to which he consented. That it was then agreed between Bush, Evertson and himself, that Bus/i should pay Rvertson 5,600 dollars to~ wards satisfying him for the amount due on the bonds and mortgages, and that Livingston should secure to Evertson what should remain due for principal and interest, Evertson assigning to Bush, to secure him the repayment of the 5,600 dollars, and also the 400 dollars, in pursuance of which agreement, the bonds and mortgages were assigned. Evertson deposes, that he understood and believed the 5,600 dollars paid him by Bush was a loan from Bush to Livingston, and his reason for so believing was, that the money was paid at the request of Livingston for his .--ole benefit. The transaction between Bush and Livingston was substantially this: Bush,'to gain 400 dollars for ninety days forbearing of 5,600 dollars, advanced the latter sum to Evertson for Livingston, upon good and valid securities, and took the assignments as for 6,000 dollars.

As between Evertson and Bush, there can be no question that the latter became invested with all the right of the former to the sum then actually due on the bonds and mortgages. In fact, this payment was not a loan to Livingston, because Bush paid it to Evertson, as the consideration of his assignment. If Evertson himself, without the interv ention of Bush, had exacted 400dollars, or any other sum,fromLivingston, for forbearance for a limited period, such exaction, however usurious, would not invalidate the bona fide securities. In the case of Pollard v. Scholy, Cro. Eliz. 20, Pollard sold to Scholy two oxen for 6l. 6s. 8d. payable at All Saints next; on the same day Scholy required a longer time ; Pollard gave him to the first of May, paying to him for forbearance, three quarters of wheat, which amounted to more than the legal interest. In debt for the 6/. 6s. 8d. the defendant pleaded this in avoidance of the contract. The opinion of the justices was, “ that the statute does not make the contract void which was duly made, but doth only avoid all contracts for usury, and this last contract is void, being against the statute, but the first was good, being made bona fide.^* In 2 Hawk. 377, sect. 17, is this case—“A. was fairly indebted to B. in 1,125/. and on A. desiring time to pay it, B. insisted that 150/. should be added to the debt, as he would have nothing to do with interest. Accordingly, A. gave him five acceptances for these two sums, payable within fourteen months, and it was held, that the bona fide debt subsisted, unimpeached by the subsequent'usurious transaction.”^† A reference to the reporter, from whom the antecedent decision is taken, fully justifies the summary of the case in Hawkins. The same principiéis recognised in 7 Mod. 119.^‡ Sir T. Ray. 196.^§ 4 Burr. 2253.^¶ and in Vin. Abr. Tit. Usury, H. pl. 6, it is laid down, “ that if the first contract is not usurious, it shall never be made so by matter ex post facto A The case of Ferral v. Shaen, 1 Saund. 294, is also to the same effect, that a bond, which was good when made, is not avoided by a subsequent usurious contract for delaying the day of payment.

All these authorities proceed on the wording of the statutes against usury. They forbid the taking more than the rate of interest prescribed, and declare all assurances, &c. whereby more shall be" reserved, or taken, to be void. Now if, in this case, the bonds and mortgages in their creation were valid, if no more interest was reserved than the law allowed, how can they, conformably to this statute, and the universally concurring expositions of it, become void ? If the mortgages and bonds cannot be affected by the charge of usury, much less can the assignment, for the reason, that this is an act between Evertson and Bush. Evertson was capable of parting with his interest in these securities, and Bush of taking it. Evertson has assigned, for an adequate consideration, all his right to the bonds and mortgages, and this cannot be impeached on the pretence of usury between Bush and Livingston ; because, as Livingston is not a party to the assignment, he cannot complain that it is an assurance by which he is bound to pay more than the sum then due on the mortgages.

I think the appellant not entitled to recover more than the 5,600 dollars, and the interest, on two principles, independently of Livingston’s answer. 1st. When Evertson made the assignment, Livingston, as is,proved by Evertson, gave him two promissory notes for the balance beyond the 5,600 dollars paid him by Bush. These notes were accepted by him as a payment of so much, to wards the mortgages and his account, and have since been actually paid in full. The assignee of all chases in action, excepting bills of exchange and notes, takes them subject to all the equities between the original parties. Bush, therefore, though assignee, nominally, for 6,000 dollars, can exact no more than Evertson could, and clearly, by transactions between Evertson and Livingston, before or at the time of assignment, no more, as between them, than 5,600 dollars could be collected oh the * bonds and mortgages. But 2dly, from the appellant’s state of his own case, in connection with the testimony of Evertson, it appears, evidently, that the appellant availed himself of the necessities of Livingston to obtain more than legal interest; and, to use the expressions of Lord Mansfield, "though the transaction itself may not amount to usury, yet it was taking a hard and unconscionable advantage." In the case of Floyer v. Edwards, Cowp. 116, it was held that money, thus claimed, should not be recovered in an action for money had and received. In a court of equity, whose peculiar jurisdiction it is to relieve in cases of fraud, and whose maxim it is, that he who woidd have equity, must do equity, I think there can be no doubt, that, apart from the consideration of usury, the appellant ought not to recover beyond the 5,600 dollars and the interest. To this I conceive him well entitled. The principles I have advanced, and the conclusions I have drawn, lead to the most equitable and righteous result. The appellant obtains the money really advanced, with interest, and the respondent is relieved from the advantages attempted to be taken of his distresses by the appellant.

It will be observed, that I have abstained from any inquiry into the correctness of the chancellor’s order, in point of form ; because, in my opinion, the issue, if correct in form, would have been upon a point wholly immaterial. The respondents could never have made out more than Livingston alleges, and on his allegations, taking- them for true, my opinion has proceeded, so far as respects the question of usury.

There remains only one point necessary to be considered ; that is, whether this court will finally decide the cause ? In the case of Gouverneur & Kemble v. Le Guen, this court, on an appeal from the order oI the chancellor, directing an issues finally decided the cause, and directed the complainant's bill to be dismissed. It did so on precedents fr~m the pro~ ceedings of the House of Lords, in England, on appeals from chancery, and because the whole merits of the case were before the court. When it is considered that there can be no further proofs in the cause, that the whole merits have been discussed and reviewed, that it will save litigation and expense, I am myself contented to be bound by the precedent which has been made. In my opinion, the order appealed from ought to be reversed, and an order entered, that the chancellor decree the respondents to pay the appellant, by a time to be limited, 5,600 dollars, with interest, from the 22d of July, 1799, with costs, in the court below to be taxed, or that the respondents be foreclosed their equity of redemption.

Judgment of reversal accordingly.

Hallet and Bowne against Jenks.

IT was ruled, that a cause cannot be set down for # hearing, till cases are delivered.

* See Turner v. Hulme, 4 Esp. Rep. 11, a note given for the liberation of a defendant under Arrest, on a usurious note though for the amount of the very usurious note, cannot be impeached for the usury of the first note, where a third person joins in the second note,

† Gray v. Fowler, 1 H. Black. 462, S. C.

‡ The Queen v. Stwel.

§ Rex v Allen.

¶ Abrahams v. Bunn.