Citation Numbers: 37 Ky. 296
Judges: Ewing
Filed Date: 6/20/1838
Status: Precedential
Modified Date: 7/29/2022
delivered the Opinion of the Court.
The complainant’s bill is so unskilfully drawn, that it is rendered difficult to determine what relief, if any, should be afforded him. But, upon the best scrutiny we are enabled to give to the whole case, we think he is entitled to some relief.
The answer is evasive, and irresponsive to the several charges contained in the bill. It admits the conveyance, and denies, in general terms, the consideration set out, and attempts to set out another, to wit. That it was given for thirty dollars advanced to buy his beds, in part, and the residue was for property of the complainant, which he had bought under execution and surrendered back to him; without alleging what property, or its value, or what he had bid for it. The facts disclosed in the answer, may be partially true, and if so, might have furnished, in the conscience of the defendant, a sufficient pretext for the general denial of the consideration, as-charged; and yet it might be true, that there might have been an understanding that he should purchase the articles, and that they were to be given up, upon the money advanced for the purchase being secured, by the conveyance of the land, as security for its re-payment, with usurious interest. And this conclusion is strengthened from the fact, that he does not pretend to show what was the bargain for the land; what the price agreed on; when paid, or to be paid, or what was the value fixed on it, or whether sold in gross or by the acre. These things are generally well known and agreed on in a bargain of purchase, and if there be no intended concealment, might have been easily set out. The defendant, after making the foregoing general response, and evasive explanation, concludes, in equally general
The proof is, also, persuasive, indeed perfectly satisfactory to the mind, that the land was held as a security for money loaned, and was to be re-conveyed upon its re-payment; and the evasions of the answer, together with the proof of his urgency upon an embarrassed man, to have an absolute conveyance, that he might have the power in his own hands, as the means, as he said, of saving himself from the advantages which others had taken of him, to whom he had loaned money, all confirm us in the opinion, that eighteen per cent., or some other per cent., in usurious interest, was reserved, and intended by the absolute conveyance to be secured.
But what sum, or what description of money, was advanced, and what shall be refunded, is not so clear*
The witnesses all concur, in stating it to be one hundred dollars, according to his (the defendant’s) repeated confessions. But it is not stated whether it was one hundred dollars in good money, or in Commonwealth’s paper. But we are inclined to think, as the loan is charged to have been made in Commonwealth’s paper, and the defendant has not denied it, and as Commonwealth’s paper was the general currency at the time, that that was the quality of money advanced.
The decree of the Circuit Court is, therefore, reversed, and cause remanded, that a decree may be rendered, requiring the defendant to re-convey the land conveyed