*1 Cope y. Wheeler. of case Statement also there in J., was error thought refusing Daniels, second defendant. request J., Ch. concurred with for J., affirmance.

Hunt, Lott, took no J., part. Woodruff, reversed.

Judgment McCraney Administrator of John and Elizabeth Cope, John v. William T. Wheeler et Respondent, Mc Craney, . a Executors of l., Julius T. Alden, deceased, Appellants money proper An action for had and received is the in a form which mort surplus gagor may moneys, arising upon statutory sue for a foreclosure sale, inequitably by retained mortgagee. James, Accordingly, mortgagee surplus claims to moneys, retain the applicable payment upon to the of the subsequent amount due a mort- gage property, by the same the same mortgagor, and such is, fact, usurious, mortgage mortgagor may moneys recover mortgagee moneys action had and received. $1,500 mortgage, the consideration for a executed Where husband and wife, part them, is sum cash loaned to $500 and in assignment previous of a to the husband mortgage $1,000 usurious mortgagee, upon to the given lands, the wife her own before her mar- $1,500 mortgage riage—Held, that the usury, void and cannot be enforced. Lott, JJ., Held, contra), although further (Grover the wife con- $1,000 veyed the lands covered purchaser, subject to a amount mortgage, the to that which was deducted from the considera- deed; although husband, tion after the assigned him, purchaser had been settled with the therefor record, discharged the lien of still the holder of the mort- not retain from such gage could husband and surplus wife the moneys of the land a arising from sale previous foreclosure of a except, most, thereon, portion amount the cash of the con- $1,500 mortgage. of the said sideration Sept. 29th, and (Cause argued 21st, decided 1869.) Dec. is an from appeal judgment General Term

This Court, the. sixth Supreme judicial affirm- district, entered on the verdict of ing at the Otsego Circuit. Cope Wheeled. [Dec.,

Statement case. *2 The to the John action were original parties HcCraney and P. Elizabeth T. Julius HcCraney plaintiffs, Alden, defendant. The action was recover to moneys surplus in the hands of a foreclosure defendant, on sale arising the defence a claim to mortgaged premises; surplus virtue of by held on defendant subsequent by mortgage the same the defence, this was that said premises; reply usurious. subsequent mortgage was The in foreclosed was made 1860, mortgage by January, land for owned plaintiffs defendant, $800, jointly the It was in foreclosed and sold plaintiffs. 1862, Hay, amounted to $1,379.12. surplus that in November, 1858, before marriage appeared,, Eliza- loaned to plaintiff, plaintiff, a sum of and took her for beth, $1,000, bond secured money, on This lands State of Wisconsin. by mortgage in this Oneonta, transaction took State, place all and execu- resided, then and the were made papers ted this It was claimed that there. bond mortgage'was that under an on $1,000, pay- to secure given agreement handed back be, ment of that sum was to and was $100 interest. extra 1859, intermarried to November,

The previous plaintiffs the said Elizabeth and on the tenth day November, mort- a certain lands Wisconsin portion conveyed one .for the sum defendant, to the Huntington, gaged to the conditions $6,000, specified subject payments not covenant to said Alden. mortgage grantee said he testified but orally, of said consequence deducted from price purchase mortgage. for the defendant

In July, plaintiffs applied in his and the resulted another loan of money, negotiation them assigning money, advancing $500 the bond of said before John Elizabeth HcCraney, plaintiff, on the Wisconsin with marriage, together interest on the bond $800 with which, together property, Cope Wheelee. Statement of case. amounted which the $1,669, plaintiffs,

the fifth executed and delivered day July, defendant their bond secured $1,669, on real by mortgage estate in the same Oneonta, covered being premises It is $800 under mortgage.

defendant claims to retain the which the surplus money; insist is usurious reason of plaintiffs the Wisconsin into, entering consideration. forming part John, after plaintiff, Wisconsin mort- obtaining settled gage, part of same, Huntington Before trial discharged John mortgage. plaintiff, *3 and John McCraney died, his Cope, admin- being appointed istrator, substituted plaintiff place deceased. When evidence closed, defendant’s counsel made a for a motion nonsuit which was denied. He also made numerous which were requests charge, denied, took several so far exceptions which, charge, deemed noticed in the material, will be opinion. then submitted "was who found for the jury, with $1,104,12 damages.

plaintiff, been having suspended, motion was made for Judgment trial on which was exceptions, new denied, judgment for the on the ordered verdict the General plaintiffs Term, The defendant from the then appealed this court. Countryman,

E. appellant, insisted, among that this action for would lie surplus moneys things, only received which money, equity conscience he ought refund, neither good conscience called defendant here good equity these and cited refund Barber v. moneys, Casey (11 v. 488, Smith (13 Wend., Eddy Rathbone Barb., 549); 490); Buel v. Barb., v. Stocking (2 Boughton Den., 145); (2 ;91) v. Wheeler Burr., McFarlan Cox (7 Mosesv. 1010); Paige, Gale v. Barlett (4 Paige, 503). 248); lands in related to Wisconsin and $1,000 mortgage II. 39 Hand—Yol Cope y. "Wheeler. [Dec.,

806

Statement case. reference to the made with laws was- State, therefore usurious. on conflict of 364, (Story Laws, §§ Contracts, 2 Parsons 5th 367, 372, ed., 427 571 ; ; v. 1 220 Abeel 4 v. Nichols, Denio, ; Douglas, Paige, Hosford 4 Nicholson v. Sandf. Leavitt, R., 305; Sup. 276; 28 N. v. Brush, 674; v. Young Giddings Eastman, v. R., Clarke’s Ch. Goddard 9 Sell 19; Sawyer, Allen, v. 78; Ohio v. 1 Miller, State, Pick, 81, 11 Cutler 331; Davenport, 6 v. Bolme v. 86; Robertson, Wom 627; Chapman Paige, 38 v. 2 bough, Barb., 352; Vanschaick Johns. Edwards, 361; Otis, Fisher 3 Chandl. 83 Sher Cases, 358, ; v. (Wisc.), 4 Butters Gilman, Ill., 521; Old, man v. v. 11 Gassett, 11 v. Atwater Smith, Mass., 38; Pine v. Iowa, Gray, 1; 2 also in 4 Amer. Ohio, 19; Law reported Handy, Roelofson, 549 Connor 2 v. Bellamont, Lansdowne ; Atkins, 382; Reg., House 2 New Parl. Lansdowne, Lords, Bligh v. Rep., 60.) that where contract is made in settled, It is well one State- rate of interest another, highest to be performed either reserved. v. State (Depeau Humph allowed by maybe Lous., 14 33 Martin, Verm, 20 Peck v. Hull 1; Mayo, ; reys, 35 Tallman, Barb., Potter v. Wheeler, Abb., 411; 182; v. 22 N. Jacks Y., 472, 474; Nichols, v. Wright, Cutler *4 30 N. Y., 259, 264; Jewell v. Curtiss ; Wright, 178, 185 Y., Everett v. 19 N. 13, 227; Vendryes, Y., 15 N. Y., Leavitt, v. 12 Wisc. Andrews Bank, 692; Richards v. Globe 436, 438; Peters, 13 65.) Pond, v. conveyance Huntington, sale mortgagor

By - for its the usurious debt ratify provide pay elected land purpose, appropriating by specifically ment and could have been enforced. created thereby lien a valid Y., Russell v. 24 170 7 Harrison, ; N. Pistor, v. (Hartley Barb., 359, 40 362; v. Hal Berdan 171; Sedgwick, Y.,N. 9 9 v. 446; Reed, Shufelt, Paige, Paige, v. sey Shufelt 595 2 Post v. 8 Denio, v. ; Dart, Crawford, Ferris 145 ; 6 N. Morris Church, v. v Y., 347; Sands 640; Paige, 13 135 Wells v. Barb., Barb., 130, Chapman, 561; 5 ; Floyd, Y., 74, 12 N. Hughes, 79.) v. Trotter Cope v. Wheei.ee. 307 (cid:127) Statement case. $1,669 founded in on other con mortgage, being than

sideration other $1,000 and given upon lands with” additional the same is party mortgagor, not affected with $1,000 as was not usury mortgage; intended evade contrivance to the statute 2 Ch. 201; v. usury. (Brown Waters, Dec., Maryland 9 Turner 4 Barstow, Hulme, Pearce v. 45 v. Mass., ; Espin v. Fowler 2 asse, 11; C., Vickery v. S. Henry, Bailey, 54; 35 98 10 Dickson, Barb., 97, Jackson v. ; Henry, Johns., Cuthbert Durnf. & 204; v. 8 East, Haley, 390.) John to the Wisconsin MeCraney As party nor a heir, devisee or representa surety, not avoid it for he could without borrower, tive usury, the sum loaned. And then paying actually offering could he recover usurious excess. v. only (Billington 2 33 v. N. Wagoner, Y., 31; Widger, 131; Rexford v. 391; Post Bank v. 5 Utica, Hill, Murray Judson, 7 Seld., 85.)

L. L. insisted, Bundy, respondents, among that if the was void things, ; also void, 2 Parsons on Con cited, v. Johns., Mitchell Davis tracts, 396; Jacks (30 v. Nichols 285); Selden, Wallace v. Bank (1 Washington How., U. 178); (3 v. Alden How., S. ; Cope (37 v. Dick R., 62) 187); Vickery Merrill Barb., son v. Ch. Dunning (1 Clark, R., (35 96); 252); Taunt., v. Hennell Cuthbert v. (5 Harrison 780); Haley (8 T. Bullock v. R., Boyd Hoff. 390); (2 R., 294, 306, Ch’y Hubbard v. Mass. Bridge (15 R., 307); 96); Barb., 76, Reid v. Smith cited; above (6 Barton Port Cow., v. 647); Co. Barb., Jackson Truax (17 Rose 397); (21 Barb., 361); v. Newell (15 Pick, Loomis 159); Contracts, 51; Chitty 1 Smith’s Cases, Conn., Andrews v. Ives Leading ; 368).

The and $1,000 bond must be to governed, laws New York. Williams v. validity, by ( Fitzhugh, Conflicts Y., 451, 452; Laws., 317, N. Story 37 282, §§ Cope v. Wheelee. 308 [De(, Court, per James, Opinion of the 2 Kent’s v. 321, 332, Com., Curtiss 340; 457; 15 leavitt, 30 N. Jewell v. Y., 9, 259, N. 227; Wright, Y., 264; Lee v. 33 v. Sillick, N. 1 Y., 618; Nichols, Paige, Hosford v. 36 220; Bartholick, 47 Barb., 253; Y., Merritt 44.) The and transaction between McCraneys Huntington $1,000 with reference to the and of John mortgage, McCraney of the reference to the do discharge not aid the defendant in this v. action. 40 (Berdan Sedgwick, Barb., and 4 Denio, cases v. cited; 104; Dunning Merrill, Clarke’s and see Moak’s Mr. Chy., p., note, 252, marg. p. 264, 2d 1 ed.; v. Snyder Sponable, Hill, 567; Id., 7 Hill, 427; Jackson v. 16 Stevens, Johns., Jackson 110; v. McConney, 19 v. 5 Wend., Rogers Benson, Johns. 175; 431 Chy., ; 14 N. Y., v. 430 v. Torrey ; Ackley Torrey, Tarbox, N. Kern., 164; Marquat, Marquat 336.) action J. This continued in the name properly James, of the surplus and plaintiffs. property and the interest jointly, belonged plaintiffs plain his to his John, on death tiff, passed representatives. action was also The form of the Where proper. mousy which has been received, equity belongs another, lie received will for its action for money recover)'; Code, defence, under now, any equitable, legal the defendant. bemay interposed while statute defence of usury, to the same consideration as entitled remains, or treated defence. cannot as unconsion- disregarded, strict rules of construction more than able, subjected other defences. case is,

One whether questions important usurious; depends bond was New York whether the bond I entertain no or a Wisconsin contract. Hpon doubt. the $1,000 bond

At the time executing of negotiating resided in this State; both agree- *6 Cope v. Wheeler. 309 1-169.] Court, per James, Opinion, of J. the instruments were made;

ment for the loan was here both of here; and the excess executed here; monéy paid covered here. the land interest received Although was of neither Wisconsin, situate State yet mortgage bond or named of and hence place payment, mortgage the same were resided. where here, payable

This examined question very thoroughly Supreme Court on a and an former this same cause, appeal opinion written on that Justice Mascot the true occasion by gave of on this be exposition the law well question, may as the court on that adopted this (53 opinion question. Barb., 350.) New York contract, being question and their is conclusive the fact. jury, finding

The evidence sustained the verdict. fully

That entered usurious, into mortgage being having formed consideration on mortgage which the defendant seeks to in his apply surplus money hands, the latter is also tainted and is with usury, (Gib void. let Averill, 5 Denio, 88; Jacks v. 5 Nichols, N. 178; Pr ice v. Bank, id., Lyons 55.)

Such latter was void for the whole amount; but as no was taken to exception plaintiffs instructions to the amount of judge jury, recovery, arises on that question point.* insists that the court erred appellant refusing * R, Fitehugh 451), If. T. expressly Williams v. it was Note.—In decided, by

sharply court, security or notes, given not, to-secure some of which several were usurious and some 1837, chap. 430, and 1 Rev. mortgagor (notwithstanding the act of § 8), p. Stat., up by equity, cannot have the delivered a court of § cancelled, except offering be amount due on the notes statutes, providing filing not usurious. The the borrower bill “ chancery, against usmy, obliged for relief shall not pay, or offer principal pay, any or thing loaned," &c., interest the sum or as a con- relief, applies principal usuriously dition interest of the amount loaned, security. and not the other non-usurious loans seemed the same is, perhaps, authority This decision court case.—Rep. in this below Cope Wheeleb. [Dec., James,

Opinion Court, p'er “ whether not the submit *7 was intended made and executed loan to be said mortgage the faith sole reference to laws the with parties, good if the find affirmative, should Wisconsin; of the of Wisconsin.” the same was laws then, governed by that there to this is the fact was A sufficient answer exception a the con- on which to On no evidence base such request. the all and a find- evidence was the other verdict trary, way, such aside as would have been set against ing proposition The evidence. was refused. request properly “ It is next that the insisted that court erred in ruling a was not lien Wisconsin valid mortgage land date of the from the convey conveyed Huntington, ance to This him, subject exception pre mortgage.” a Within the sents some question difficulty. ruling Y. this this court, Harrison, Rep., Hartley 170), a did valid lien on the Wisconsin become property “ a as held that case that was pur against Huntington. a chaser takes from the who conveyance premises a the lien and mortgagor, subject payment mortgage, a set the defence of cannot against up usury mortgage, land and thus interest which obtain mortgagor ' In this or intended transfer him.” case, never agreed the lien land said Huntington subject sold not covenant to Huntington mortgage; the sum was deducted from purchase price but mortgage, one interest thereof, account paid year’s Huntington became valid lien therefore, thereon. he did not land become as against Huntington, although defendant, had debt; personally responsible could have enforced it he parted erred in it be said the court land. But can before against we must see whether as to charge requested, refusing when all material. Although plaintiffs, had waive the concluded to to Huntington, they conveyed their whether minds; subsequently usury, they changed here, that waiver is not material could have recalled they Cope v. Whebleb. Opinion Court, per Jakes, of the was, because while executory defendant, to and of the $1,669 transferred became mortgage. “ sale to was not conditional confirmation Huntington debta usurious while remains contract, original wholly incapable confirmation; executory, although as enabled the waiver deed was such Huntington enforcethe mortgage against againstHuntingtonto if he the borrower himself the land, chose; yet, against after lands that, of no so these Wisconsin force; waiver was from ward become the conveyance property plaintiffs by the defence of unpaid, Huntington, mortgage remaining them availableto enforcement. would have been neither In this the usurious nor paid case, *8 the waiver was collected from the fund to which extended. of the defence remained. other was fund, usury As (cid:127) it is this of another instrument and into, carried part enforced which is be the sought instrument against latter from another fund. collected To this be borrower, of latter said enforcement defence instrument, attempted the borrower. by may interposed usury the usuri- because claimed ¡Something by appellant, one plaintiffs, was ous assigned from Wisconsin property, whereby they lien discharged itsof price. Surrendering balance purchase received unpaid an would not instrument, usurious security valid collateral would invalidity usury; that instrument purge was not removed case the taint of usury In this remain. still it waiver borrower’s by original mortgage from out nor it by taking was wiped fund; a particular the latter to one, for the old assigning new mortgage the waiver attached to which the fund whereby borrower, can- statute of The usury the borrower. retained still by was instrument substituted in thatway. avoided not be defence and the one, usury vice of original all the offered The evidence by to its enforcement. fatal was immaterial, defence, no wholly constituted excluded. therefore, properly was, Cope -u. Wheeleb. [Dec., Opinion Court, per 'W'oodbvff, J. next that the It is insisted, court erred in . below declining

,to “the charge jury founded mortgage, being other consideration in than the said part $1,000 mort- given upon lands, with an gage, additional the same is not party mortgagor; affected by any usury if it was not intended parties fact was as, not, mere contrivance to evade the statute of which was a for usury,. jury There determine. in this error The usuri- ruling. character of ous the $1,669 depended upon of the $1,000 character If that it was usurious mortgage. tainted the whether the other, to the latter intended to violate the statutes of or not. are all

These I it deem exceptions important notice. General Term must be affirmed. It was shown in this that Mrs. case, Woodruff, then Mrs. Baker, McCraney,. intes applied appellant’s both then tate, residing State, for loan of being That he consented the loan. That money. she wanted or a for immediate money, it, use, use here. That the was secured her repayment bond, condi tioned interest. The have repayment found, loan that the her to agreement than cent more interest seven per annum, the use *9 the and that excess was in of money, fact paid. of transaction, If this were all the could have made in that a been sense New York every legal and our laws contract, wholly governed by usurious, void. therefore bond

What then is to its character ? supposed change of was secured a 1st. bond Payment by mortgage upon Wisconsin, which a contained land covenant for such payment. settled I better that than, the mere apprehend,

Mothingis, for the of collateral debt security payment fact that con is real here, here, payable property tracted situated Cope Wheeler. per Woodruff, Court, Opinion of the does not the place, State, change another is the contract be tested. which, validity laws of that the contained a circumstance, And the per cannot That have effect. sonal covenant payment it is has reference the bond, on the covenant, contrary, a cumulative is covenant personal undertaking, merely tenor effect of the bond, very pay according loan secured here, very here, money, here. Indeed, to be paid may obligation pay make a of itself a mere usurious, where sometimes not, or pledge, privilege redeeming option borrower, would be. The contract is to be from the withdrawn 2d. opera- our laws, because it was made with tit claimed, Wisconsin, reference laws of it is lawful to reserve interest at the rate annum. of twelve cent per per

Ho doubt make a this State to possible of loan contract or advance with such reference to foreign that the law, latter will construction govern legal effect. But that rule does not mere import, parties, 1*tental can another into operation, law of State import this for the of a loan made purpose character altering and to here, be here returned without any undertaking rise duty else, or money anywhere any understanding that in to the use or respect loan repayment money shall differ from other. that this loan pretext, was made with reference to

law rests on fact Wisconsin, that Mrs. Baker due to her there at twelve cent money interest, which per there desired to borrower and to she which had con- retain, And sented. that as she was to receive twelve per for her lent in cent Wisconsin, she money willing, twelve cent for in Hew agreed per borrowed money to relieve then York her wants. present There is no that she borrowed taken pretence money *10 to Wisconsin for investment a and an at rate lawful there, to over what of it there, she received or undertaking pay —Hahd Vol. II. Cope v. Wheeler. [Dee., per Woodbubt,.

Opinion Court, of the J to the lender. compensation profit some Possibly such either in the nature of might arrangement partner- adventure, anor out in ship put Wis- agency money consin profit party advance, which making would not here. be unlawful

But when loan is here made, here to be repaid, use loaned is money unrestricted, reason why is borrower than more willing lawful pay interest irrelevant and immaterial. wholly Suppose party money of his desiring payment rent or should family expenses, therefor agree twelve pay cent annum, should as a per per reason for his give willing- so, ness to do that all his was now in & capital employed trade or in profitable manufactory Louisiana, yielding him a cent profit twenty per per he annum, therefore to borrow fifteen or preferred cent twenty here per for the time rather than withdraw being, any'of capital. have no This would effect of the loan. validity in this reason that Mrs. case, Baker’s assigned money her twelve cent annum in per yielding per Wisconsin, rate loans were has lawful, or other effect. greater deem it to refer to I do not on what is necessary authority in This court held Williams v. Fitzhugh so plain. that the contract loan and the notes there given 444), laws, our for, payment were governed notwithstanding lands situated Ohio, by mortgage was secured the borrower lived also, Ohio. That notwithstanding, is a decision of case on that present point. holding and the not dispute, These facts were court properly such as testified if the transaction was as the héld that . then the was void. found, that the sale of the land it clear, I think mortgaged his subject leaving Huntington, thereof, out of the the amount purchase money, hands relations of the so as alter the claim upon mortgagor. give after such sale Let be conceded present, *11 Myrick. Ferrin of case. Statement his sale have enforced mortgage by could mortgagee not have defended could and that success- land, Huntington not because was not This -would be fully. thereto, but because and void as usurious between defence, that as retained not at to use he having Eberty afterward the the amount. defend- hands But when his and her hus- ant’s testator mortgagor with negotiated he took a new renewed a further band for loan, held usurious debt already personal obligation pay it into the new whoHy him unreleased, incorporated obliga- latter became thereby, mortgage. in mere renewal usurious debt tion of the parties the former mortgage. submitted the other I have points considered no sufficient that they and am satisfied suggest appeEant, should therefore be reversal. ground affirmed. for affirmance except

All the concurring Grover judges JJ. Lott, affirmed. Judgment G. M. Respondent, Myrick, Albert Ferrin,

Foster deceased, Administrator of Sanford Appellant. Hartman, estate, administrator, is liable for all contracts personally, and not the An expenses of the deceased. for the funeral him contract, appoint- and the And, death or removal after such case of his place, latter, in his action of a new administrator ment estate, thereon. representing the can be maintained administrator, having plain- made a contract Accordingly, gravestones grave intestate, tiff, engaging him to furnish appointed removed, subsequently and the defendant administrator in his complaint, alleging place,—Held, on to a the contract of the demurrer by plaintiff, predecessor gravestones, their construction defendant’s them, and sufficient assets in the hands of the to deliver his readiness defendant; state facts sufficient cause of constitute (Murray Mason, JJ., action, must sustained. the demurrer contra.)