Fox v. Lipe

24 Wend. 164 | N.Y. Sup. Ct. | 1840

By the Court,

Bronson, J.

Under the act of 1813, some discreet person or persons, to be appointed by the surrogate, was to unite with the, executor or administrator in making conveyances under an order of sale by the surrogate. 1 R. L. 451, § 34. On the 12th of April, 1819, an act was passed, repealing this section, and providing, that on sales thereafter to be made, it should be the duty of "the executor or administrator [ *167 ] to make a return of the *proceedings on the order for a sale, to the surrogate, who should examine the same, and if it should appear that the sale had been legally made, and the proceeding fairly conducted, the surrogate should make a further order, confirming the sale, and directing conveyances to be executed. Statutes of 1819, p. 214, § 3, 4. This statute was passed seven days before the two deeds to the defendant, and to his father, Casper Lipe, bear date ; but the orders for the sales had been made long before ; and if, as is highly probable, the sales had been made before the 12th of April, and nothing remained to be done but to execute conveyances, the statute of 1819 has nothing to do with the case.

But inasmuch as it does not appear when the sales were in fact made, it is, perhaps, necessary to assume that they were made on the day the conveyances bear date. In that view of the question, I still think the deeds may be upheld, although there was no order confirming the sale. The third and fourth sections of the act of 1819, only applied to sales which should be ordered, as well as made, after the passing of the act. These sales had been ordered under the act of 1818; and the orders should, I think, be executed in the same manner as though the act of 1819 had not been passed. The legislature repealed one provision, and substituted another in its place. They said, it should no longer be necessary to appoint a person to unite with the executor or administrator in making conveyances; but in lieu of that safeguard, the executor or administrator should report the sale to the surrogate, and obtain a confirmatory order. I cannot think that the law makers intended to annul any part of an order of sale already made, or make any change in the manner of executing it. In short, the act of 1819, only applied to future cases, and did not touch those which had been previously commenced under the act of 1813, although the execution was not then completed.

II. Although a power of sale is not mentioned in the statute, § 28, and is not a necessary part of a mortgage, it is usually inserted; and I am not prepared to say, that the power in this mortgage, or the sale under it, was void. But it is unnecessary to decide that question. Whether *the heirs of Fox can still redeem, notwithstanding the statute [ *168 ] foreclosure, is not now the question. It is enough to defeat this action, that the defendant is in possession as heir at law of the mortgagee.

III. The statute provides, that before any executor or administrator shall execute a mortgage, he shall execute a bond to the people, with sureties, conditioned for the faithful application of the moneys to be raised by the mortgage, which bond shall be filed in the office of the surrogate. 1 R. L. 458, § 29. The secondary evidence was, I think, sufficient to show, that a bond, “ conformable to the statute,” had been executed, and that it was filed in the surrogate’s office ; and the only possible objection is, that the bond was not filed until seven days after the mortgage bears date. The statute does not say, that the bond shall be filed, as well as executed, before the mortgage is given. It contains no nullifying words, and I think the bond, . when filed, was good, and took effect, by relation, from the day of its date. Jackson v. McMichael, 3 Cowen, 75, and cases cited.

IV. Nothing remains but the question of usury. The loan was $700. The mortgage had ten years to run, and interest was not payable until the end of the term. Including the rent of the acre of land, the mortgagee got less for the use of his money than he would have received on a reservation of annual interest, which would have been free from all possible objection. Although chancery will not enforce an agreement made in advance to pay compound interest, it seems to be agreed that such a contract is not void for usury. 1 Johns. Ch. R. 13, 6; id. 313. 1 Paige, 98.

But the mortgagee did not, in legal effect, get the use of the acre of land, as a part of the contract of loan. The administratrix had no power to dispose of the land, and although the mortgagee entered and occupied the property, he might have been ousted by the heirs at law of Fox, and to them he was accountable for the rents and profits. It was said on the argument, that if the borrower pays more than legal interest, it matters not how he obtained the money to make the payment—if he stole it, the transaction will [ *169 ] Nevertheless be usurious. That is undoubtedly true: but the proposition obviously assumes that the excessive interest was actually paid. That is not this case. The administratrix parted with nothing; nor did she authorize any control over the property of the heirs of Fox. She neither passed any interest in the acre of land, nor did she undertake to secure the enjoyment of it to the mortgagee. In short, the conversation about the acre of land was of no legal importance whatever.

I think the cause was properly disposed of at the circuit.

New trial denied.