Wenham v. Mallin

Mr. Justice Waterman

delivered the opinion of the court.

It is well settled that an assignment of wages to be earned under an existing employment by a private person is valid and enforcible if made in good faith and for a valuable consideration. Volume 2, second Ed. Am. & Eng. Ency. of Law, p. 1031; Thayer v. Kelley, 28 Vt. 19; Carter v. Nichols, 58 Vt. 553; Kane v. Clough, 36 Mich. 436; Garland v. Harrington, 51 N. H. 409-413; Hawley v. Bristol, 39 Conn. 26; Brackett v. Blake, 7 Metcalf, 335; Crouch v. Martin, 2 Vernon’s Rep. 595; 5th Ed., Drake on Attachment, Sec. 612.

It is urged that the wages of Mallín are by statute exempt and therefore the decree of the court below was properly entered. There is no such exemption. Certain real and personal property is exempt “ from execution, writ of attachment and distress for rent; and the wages of the head of a family residing with the same are to the extent of $50 exempt from garnishment.” Sec. 14 of Chap. 62, R. S.

There is no law forbidding any natural person from selling or assigning any property he has, while there are laws providing that certain property can be conveyed of mortgaged only in pursuance of certain statutes.

Was the assignment rendered nugatory by the discharge in bankruptcy ? A discharge in bankruptcy is analogous in its effect to the statute of limitations; it neither pays nor discharges the debt but suspends the right of action thereon. Valid liens are not by it removed. Bush v. Stanley, 122 Ill. 406; Pease v. Ritchie, 132 Ill. 638-646; Douglas v. Russell, 4th Simons Ch. Rep. 524.

The assignment was a security, frail, indeed, as it might at any time be rendered worthless by action of appellee or of Armour & Co. • The assignment creates a right only against wages earned by appellee in the service of Armour & Co., because it was and is good only as to an employment existing when it was made; yet it was a security, a property right enforcible, so far as it did not contravene any law.

It never was and is not enforcible for usurious interest; nor for interest at all if there were an exaction of usurious interest.

In this state it is lawful to contract for interest at the rate of seven per cent per annum; a contract for more is not only usurious but deprives the lender of all interest. Appellee does not deny the reception from appellant of §342 more than he has paid back; while claiming that he has been from this debt discharged in bankruptcy, he does not deny that a valid indebtedness to such amount existed before such discharge.

Under such circumstances he has applied to a court of equity to, without the payment of a penny, relieve him from the effect of a security he gave, valid for all the money he actually obtained, of which no part has been returned.

Having come into a court of equity he can obtain relief only in accordance with equitable principles. It is a maxim of equity that he who seeks equity must do equity. Bo principle is, in the cause of equitable procedure, of greater consequence.

In its broadest sense it embraces the foundation of all equitable procedure. It is a principle of most extensive application and may be applied in every kind of equitable litigation.

A court of equity will not confer its equitable relief upon a party seeking its aid, unless he will acknowledge and concede all the equitable rights and dividends justly belonging to the adversary party, growing out of or necessarily involved in the subject-matter of the controversy. 'Pomeroy’s Eq. Jurisprudence, Secs. 385-388.

Although the statute may have made usurious loans and obligations absolutely void, if a borrower brings a suit in equity for the purpose of having a usurious bond or other security surrendered and canceled, the relief will be granted by a court of equity only upon condition that the complainant does equity by repaying to his creditor that which is justly and in good faith due—that is, the amount actually •ad vanced, with lawful interest—unless the statute expressly prohibits the court from imposing such terms as a condition of relief. Pomeroy’s Eq. Jurisprudence, Sec. 391; Snyder v. Griswold, 37 Ill. 216; Cushman v. Sutphen, 42 Ill. 256; McKendree Tooke et ux. v. Newman et al., 75 Ill. 215; Clark v. Finlon, 90 Ill. 245.

The same principle is applicable to a bill to set aside an unwarranted and illegal tax sale. Reed v. Tyler, 56 Ill. 288.

The decree of the Circuit Court is reversed and the cause remanded, -with directions to dismiss the bill for want of equity.