8 Conn. 35 | Conn. | 1830
By our statute, all usurious contracts,—and mortgages are particularly named,—are declared to be utterly void.
To this it is said, that they are entitled to sach protection; but it must be in another mode: it may le allowed when ejectment is brought for the land, or an acton is commenced on the note. But the plaintiffs may be, aid perhaps in this very case are, in possession under some srtisfied mortgage: of course, they cannot bring ejectment, am will not bring a suit on the note. Are not the defendants deprived entirely of the benefit of the statute? It is true, tluy may bring a bill to re
Could the court aid a plaintiff in carrying into effect a contract, which he shews to be founded upon a gross violation of law? And if, in such a case, the court would not interfere, why may not the defendants be permitted to shew the same facts? Ought the plaintiffs to gain an advantage, bv stating only a part of the case? They have, indeed, shewn a prima facie case; but like all other cases of that description, its character may be changed, by a disclosure of the real state of facts.
It is said, that tie title connot be investigated in this suit. It is no more investigated, than when it is claimed, that the party was an infant, or a lunatic or under duress. And the title is, in some measure, investigated, whenever the plaintiff' is called upon to prove the execution of his deed. That this is not the principal object of a ill of foreclosure, I grant. I do not intend to examine the quesjon how far title may be investigated, particularly; but refer to the able discussion of that subject in Palmer v Mead, 7 Com. Rep. 149. confining myself to the precise question whether isury can be proved. In De Butts v. Bacon & al. 6 Cranch, 252. before the supreme court of the United States, this was allowed. The principle was al
It must, however, be considered as settled, in this state, that a bill of foreclosure need not be brought in the county where the land lies; and I am not disposed to disturb it. It has been doubted whether the statute on that subject applies to any other than actions at law. Whether that be so or not, I do not think it reaches this case. The statute is: “All suits wherein the title of land is to be tried and determined, and all actions of trespass quare clausum, fregit, shall be brought and tried in the county where the land lies.” Stat. 41. tit. 2. s. 21. That this does not apply to all suits where the title of land may be and is in question, was decided, by the supreme court of errors, in an action of account for the rents and profits of land, brought in a county other than that where the land lay. A plea to the jurisdiction was interposed, averring, that the title of land might be and was in question; but the plea was overruled. Lewis v. Martin, 1 Day, 263. It would seem, therefore, that the statute applies to those cases which may be considered appropriate for the trial of the title; especially, as we find actions of trespass explicitly mentioned. It is believed, therefore, that this class of cases will not affect the decision of the case under consideration.
But it is said, that we have a course of decisions in our own courts on this subject. It is true, that the question has often been decided in the superior court. But when I have witnessed our superior court so deciding, and in the same place, and in the same month, the circuit court of the United States deciding the same question in a manner directly the reverse, I have been led to consider it as one of those cases, which, with peculiar propriety, may be reviewed by this Court.
The case of Owen v. Granger is cited as the first case. It was decided in 1802. Upon examination of the records, it appears, that there was a plea in abatement, protesting that the,
But further; I think the evidence admissible on another ground. If the defendants might not prove that nothing was due, because the note and deed were void, they may prove, even upon the principles of those who deny their right to investigate title, that less is due upon the debt than is claimed. “The actual state of things between the mortgagor and mortgagee in relation to the lien of the latter upon the land, must be brought into view, and ascertained from testimony in court.” Baldwin v. Norton, 2 Conn. Rep. 165. Uusury, then, being pleaded, the defendant may certainly be permitted to shew, that a part of the note is for interest over and above the lawful interest; and a court of equity, under such circumstances, would say, that if the defendant should pay all the money advanced and legal interest, he should not be foreclosed.
I am, therefore, of opinion, that the evidence should have been admitted, and advise a new trial.
New trial to be granted.
The words of the statute referred o, are: “All bonds, contracts, mortgages and assurances whatever, trade for the payment of any principal or money lent, or covenanted to be lent, upon or for usury, whereupon or whereby there shall be reserved or taken above the rate of six dollars for the hundred, for a year, shall be utterly void.” Stat. 476. tit: 106. s. 1.
There was another cause of abatement, but not connected with this question.