Stayton ex rel. Bryan v. Riddle , 114 Pa. 464 ( 1886 )

Mr. Justice Sterrett

delivered the opinion of the court,

Assuming the fact, impliedly found by the verdict, that, as between the parties to the mortgage, the debt secured thereby was tainted with usury to the extent of $1,050, it necessarily follows that the mortgagor had a right, under the provisions of the Act of May 28th, 1858, to retain and deduct that amount from the mortgage debt; but the right to do so was strictly personal, and could not be exercised by the terre tenants of the mortgaged premises. Since the passage of the Act above, referred to, it is not unlawful for a debtor to pay, or a creditor to receive more than six per cent, interest. When done in good faith and in the usual course of business other creditors of the debtor have no reason to complain. Nor have they .any right to interfere in any case except where, under the guise of usury, there has been a collusive scheme between tlie debtor and his creditor to cheat and defraud other creditors of the former; and the mere fact that the debtor has paid or agreed to pay more than six per cent, interest is no evidence in such collusion. Those who allege that usury is a fraud upon them must do more than show the payment of interest in excess of the legal rate. That is a matter of which the debtor alone can complain: Second National Bank of Titusville’s Appeal, 85 Pa. St., 528; Wheelock v. Wood, 93 Id., 298; Lening’s Appeal, Id., 301.

It is contended, however, that when Riddle, one of the terre tenants, purchased the property at sheriff’s sale subject to the mortgage, Dr. Graham, the mortgagor, for a good and valuable consideration, agreed to defend against the mortgage to,the extent of the usurious excess; notwithstanding he subsequently refused to do so, the terre tenants, as quasi assignees of the right given by the statute to the debtor himself, might for him and in his name make the defence. This position is more plausible than sound. To permit the terre tenants to thus interpose the defence of usury, without the consent and against the will of the debtor, would be tantamount to decreeing specific performance of his agreement to defend against the usury.

The substance of Dr. Graham’s agreement with Riddle was, to assert the personal right given him by the statute, and thus reduce pro tanto the incumbrance, subject to which the defendants in error took the mortgaged premises. He not only refused to do so, but he subsequently went into court and confessed judgment for the full amount claimed by the mortgagee. Would a chancellor enforce specific execution of such a contract? If he would, it may be conceded that our courts of Common Pleas, invested as they are with equity powers, would permit a. defeuce, in an action at law, the result of which would be practically the same ; in other words, administer equitable relief in a common law form of action. But we have no doubt a chancellor, with a bill for specific performance of such a contract before him, would dismiss it, not only because there is a full and adequate remedy at law, but, for the further reason that contracts relating, to personal chattels, stocks, securities, &c., are not enforceable specifically in equity. To this general rule there are but few exceptions, some of which are noted in McGowin v. Remmington, 12 Pa. St., 56, 61. Moreover, the evident purpose sought to be accomplished by the contract, and its effect upon other bidders at the sheriff’s sale, as well as creditors of the mortgagor, were not such as to commend it to the special favor of a chancellor. But, aside from every other consideration, it is sufficient to say, that if the contract in question is worth anything, the defendant Riddle has an adequate remedy at law by an action on the contract for the alleged breach thereof; and, hence, he cannot be permitted to pursue a line of defence that would be tantamount, in its results, to a decree of specific performance against Dr. Graham, the mortgagor.

The view thus taken of the main question renders it unnecessary to notice other specifications of error, presenting questions which might otherwise, become important.

Judgment reversed, and a venire facias de novo awarded.