| Ill. | Mar 27, 1886
delivered the opinion of the Court:
The conveyance made to Drury by appellant Essley, was subject to the incumbrance of the Bassett trust deed, securing the note payable to McKinney, and the deed expressly makes the title conveyed subject thereto. The same is true of the conveyances by Drury to Bigelow, and by Bigelow to appellant Ballard. In the deed from Drury to Bigelow the incumbrance for McKinney’s benefit is stated to be “$2000, with interest paid thereon to January 1, 1879,” and Bigelow took the land subject to the incumbrance and charged with that amount of money. Ballard, under his quitclaim from Bigelow, took the title of his grantor only.
It is apparent that usurious interest had been paid on the McKinney note by Essley and Bigelow, but neither of the grantees in the deeds mentioned acquired the right, if any existed, to set up as a defence to said note in the hands of McKinney, or his assignee, Sloan, any usurious interest paid by his grantor. Nor is there anything in the record tending to show that the usurious character of the McKinney note was mentioned or was in any way taken, into consideration in either of said purchases. The amount agreed to be paid to Essley consisted of certain indebtedness from Essley toDrury and to F. P. Burgett, which they were to satisfy.
Without stopping to discuss whether, as testified to by Essley, Drury 'in express terms agreed, as part of the consideration of his purchase, to pay and satisfy the incumbrances, on these lands, it does appear from Essley’s testimony, and without contradiction, that there was a counting up of the-claims Drury and Burgett had, and they amounted to $7.68 per acre, and that the trust deed to secure the McKinney note-was counted in to make up the $7.68 per acre that he swears was to be paid for the land. We have already seen that in. the deed from Drury to Bigelow the amount of the incumbrance is stated at its face value, “$2000, and interest from January 1,1879.”,
It is evident, we think, that Essley did not understand, nor did Drury, that any right was transferred by him to Drury to-defeat any portion of the McKinney claim, and the same is-true of Drury and Bigelow, at the time of the conveyance to-the latter. The conclusion that it was understood, by all parties to these transactions, at the time the deeds were severally made, that the incumbrances formed part of the consideration for the purchase, seems irresistible. Whether it was so agreed in express terms is not material. The legal effect is the same. In both of the conveyances last mentioned, the incumbrances then on the land were excepted out. of the warranty, and all three of the conveyances were made with a view to these incumbrances and subject to them, with full knowledge of their amount and the priority of the lien created thereby, and no authority was given to or .permission obtained by the vendees to set up usury as against the McKinney note, and the presumption is that the incumbrance, “as it appears on its face, formed part of the consideration”*' to be paid in each case for the lands. Essley had the right, if he chose, to affirm the validity of his usurious contract with McKinney, and having conveyed only the equity of redemption, will be held to have done so. Drury and his grantees purchased subject to the incumbrance, with full knowledge thereof, and it in no w7ay concerns them whether, as between Essley and McKinney, the contract was tainted with usury or not. If Essley protected the incumbrance, and provided for its payment by taking that much less from Drury for his land, thereby in effect leaving enough of the consideration of his sale in Drury’s hands to pay off the lien, and Drury so purchased, and paid only the excess he agreed to ‘pay over and above what the incumbrance Avas under-' stood to be, he is in nowise injured, and neither he nor those claiming through or under him can be heard .to complain. Henderson v. Bellew, 45 Ill. 322" date_filed="1867-09-15" court="Ill." case_name="Henderson v. Bellew">45 Ill. 322; Valentine v. Fish, id. 462; Maher v. Lanfrom, 86 id. 513; Darst v. Bates, 95 id. 493; Sands v. Church, 6 N.Y. 347" date_filed="1852-04-05" court="NY" case_name="Sands v. . Church">6 N. Y. 347.
Appellant Ballard is, then, in no position to insist upon the usurious character of the transaction between Essley and McKinney, nor can he haA’e applied the usurious interest paid by Essley or Bigelow, in reduction of the debt, for the payment of which funds were, in effect, left in his hands. He and his grantor purchased with full knowledge of this incumbrance, and paid, presumably, only the excess of the value of the lands over and above the amount of the liens thereon, and took his interest in the lands,—the equity of redemption,— subject to their payment. It would be inequitable, after his having received the benefit of the incumbrances by deducting the amount thereof from the consideration paid for the land, to permit him to keep it himself, and not apply it to the purpose for which it was set apart and reseiwed in his hands. Essley haAdng conveyed his equity of redemption, has divested himself of the right to redeem, and has no interest in the lands or the lien of this trust deed thereon. Nor can he be permitted to aid appellant Ballard to accomplish that which Ballard has no equitable right to do. His only possible interest is in his release from further liability on the note, and in this he is fully protected by the decree of the circuit court. In any event, whether the money is paid under the decree, or the sale of the lands under the trust deed is consummated, the note is ordered to be cancelled, 'and he is, by the decree, absolutely absolved from all liability thereon.
It is urged that the circuit court erred in computing interest at eight per cent -per annum on- the note, to the date of the decree. It is not claimed that there was any mistake in the length of time for which interest was computed, but it -is said that the rate was erroneous. This is not a money decree, within the statute.
The cases cited by counsel for appellants, where redemptions were allowed from incumbrances to secure debts tainted with usury, and holding that the party seeking to redeem would be required, in equity, to pay the amount remaining unpaid of the principal, and six per cent interest, have no application here. Here the appellants, as against the trustee in this deed of trust, or as against appellee’s right to have his debt satisfied by sale of this land, were entitled to no relief, and the court could, with propriety, have dissolved the injunction and dismissed the bill, as to appellant Ballard, at least, and permitted the sale to proceed under the power contained in the trust deed. The court allowed appellants to redeem by paying the balance of the ¡principal, with the interest contracted to be paid, which, being the legal rate, was not inequitable, and appellants have no cause to complain.
There being no error in the decree of the circuit court, the judgment of the Appellate Court affirming the same will be affirmed.
Judgment affirmed.