| Va. | Mar 26, 1814
Lead Opinion
prohounced the court’s opinion.
The court, considering that, although the bond, on which the judgment and forthcoming bond injoined in this case were founded, was, in its origin, free from objection, yet, an usurious contract of forbearance of the money due thereby havin g been engrafted thereupon, it was competent for the appellee, coming to be relieved as to the usurious interest, to obtain such relief, as against Thomas B. Fox, the original party to the contract, either by cancelling the bond given for the said usurious interest, or giving him credit for the amount of the same against the bond intended to secure the principal ; and that this right was not lost to the appellee by the assignment of either of the said bonds ; is of opinion, that the decree in this case, dissolving the injunction, and dismissing the bill as to Henry Fox, instead of giving the credit, or making the deduction aforesaid, is erroneous ; inasmuch as, by merely decreeing a payment by the appellant Thomas B. Fox of 69/. (the sum forming the usurious interest,) with interest thereon from the 1st of July, 1805, to the appellee, the risque of Thomas B. Fox’s insolvency is unjustly thrown upon him. That decree is therefore reversed with costs; and this court proceeding, &c. is of opinion, and accordingly decrees, that the said injunction shall be re-instated as to the said sum of 69/. with interest thereupon from the 1st of July, 1805 : — -provided that, whensoever the said Thomas B. Fox shall deliver to the appellee his bond, given for the said sum, and assigned to Benjamin Dabney, or produce to him a satisfactory acquittance for the money due thereby, executed by those having the right to the same, the said injunction as now decreed to be re-instated shall stand dissolved. But in the event that the said appellant Thomas B. Fox, shall not produce and deliver up such note or acquittance, within a reasonable time, to be prescribed by the Superior Court of Chancery, (as, in that case, he would throw upon Henry Fox the loss of a sum for which he has paid a valuable consideration,) this court further decrees that, in that case, the said Thomas B. Fox shall be decreed to pay to the said Henr§
And whereas, in consequence of the dissolution of the injunction in this case, by the Superior Court of Chancery, the money now in controversy may have been coerced from the appellee by Henry Fox ,- in which case the injunction hereby awarded would be wholly inadequate to prócure for the appellee an indemnity against the said bond assigned to Benjamin Dabney as aforesaid ; it is hereby further decreed and ordered, that, in the event last supposed, and in the further event of a failure on the part of Thomas B. Fox to produce the bond or acquittance as.aforesaid, that, then and in that case, the appeílee shall be substituted for the said Henry Fox as to the decree against Thomas B. Fox for the 69/. with interest as aforesaid, in that case herein before provided for and in favour of the said' Henry Fox : — And the cause is remanded to the Superior Court of Chancery, to be finally proceeded in pursuant to the principles now declared.
Dissenting Opinion
dissenting, pronounced the following separate opinion.
The court is unanimously of opinion, that the appellee is entitled to relief against the bond taken on an usurious consideration, but differ as to the mode of redress, and also as to the person from whom it, ought, in the first instance, to be. obtained. And, that the grounds of my opinion may be clearly understood, I shall make a brief statement of the case. ' . • . .
The appellant, Thomas B. Fox, held three of- the appellee’s bonds, one fbr 8/. 14s. the second for 112/. and the third for 110/; each carrying interest from the 12th of September, 1802. On the 17th of May, 1803, the appellant, in consideration of forbearance till January, 1804, took the ap? pellee’s bond for 45/, and, in July 1805, on the samé ground, extorted another bond for. 69/. in which (it appears from do-, cuments in the cause,) the bond for 45/. was merged, though the appellant had assigned it to Mrs. J. Nelson, who put it in
There is no doubt with any member of the court, but that Taliaferro ought to be fully relieved against the bond exacted from him on an usurious consideration: but it seems to me that his relief ought to be obtained, in the first instance, and immediately, from Thomas B. Fox (the usurer :) therefore, I think, the bill was properly dismissed against Henry Fox, the fair assignee of the bona fide bond for 110/. and the decree correct against Thomas B. Fox, as far as it went. First, because there is .no imputation of fault, or unfair dealing on the part of Henry Fox ; to whom Taliaferro assumed payment of the bond, both before and after it was put in suit» Secondly, because he had a prompt and legal remedy against Thomas B. Fox, (who alone had injured him by his extortion,) by bringing a bill jointly, against him and Benjamin Dabney, into whose hands the usurious bond had fallen. Had'he done
It appears to me, however, that Taliaferro, at the institution of his suit, had something further in view than barelycancelling the usurious bond. The judgment and execution of Henry Fox, obtained on a bona fule bond, on which he had given a forthcoming bond, bore hard upon him ; and by the manner of bringing his suit for relief against, the usurU ous bond, he made that a pretext for getting rid of his debt to Henry Fox altogether ; for he prayed relief against both the bond for 45/., and that for 69/. though it came out in evidence, (,as before noticed,) that the former was included in the latter. But, admitting for a moment thaf he had an equitable right to a deduction of the usurious bond, (which he had never paid,) out of the bona fide bonds, first mentioned ; those for 112/. and for 18/. 14?. ought to contribute in proportion to their respective amounts, and not let the whole fall on .that for 110/. assigned to Henry Fox ¡ — but my opinion is, that it should be deducted out of neither.
But it seems to me, that the decree is erroneous in this s that, as it does not appear whether Taliaferro ever paid off the bond of 69/. (to secure the payment of which, he had mortgaged property to Benjamin Dabney,) instead of directing the 69/. with interest, to be paid to Taliaferro, the^money should be lodged in court, there to remain, until that matter be ascertained, under the control-and direction of the chancellor. And that Taliaferro be reimbursed all expences incurred in consequence of his mortgage to Dabney.
But a majority of the court being of opinion, that the appellee be relieved out of the judgment obtained against him by Henry Fox, on the assigned bond of 110/. the decree reported by Judge Roane is to be entered as the decree of this court.