4 Rand. 282 | Va. Ct. App. | 1826
delivered his opinion.
The original bill in this case was filed by the appellee, a creditor of Lewis Nicholas, for the purpose of setting aside a conveyance of land, made by the debtor to John H. Coleman; another made to Charles Wingfield, and the said Coleman; and also, a transfer of personal property, made by Nicholas to Wingfield and Coleman; and a conveyance of land, made by the latter to Edward Garland; as being fraudulent and void as to him. A chronological review of the transactions brought in question, will best explain their nature.
On the 12th of November, 1818, Wilson Cary Nicholas purchased of the appellee a sterling bill of exchange, for 3000/. in consideration.of which, he gave him his note, endorsed by Lewis Nicholas, for $ 16,046, payable on the first of January, 1820, with interest from the first of .December, 1818. A suit was instituted on this note, against Wilson C. Nicholas and Lewis Nicholas, in February,
Pending this suit, and on the 16th of May, 1820, John H. Coleman intermarried with a daughter of Lewis Nicholas; and on the first day of June, the latter conveyed to the former 3842 acres of land, part of a larger tract, on which Lewis Nicholas resided, and six slaves, professedly in consideration of an agreement made between them, before and in consideration of the marriage'. This deed was recorded in November, 1820, and is one of the deeds impeached.
Lewis Nicholas heing bound as endorser for a debt of $6,991 84, due from Wilson C. Nicholas to the Farmers5 Bank of Virginia, on the 9th of August, 1820, conveyed 22 negroes in trust, to secure the payment of this debt to the Bank, on the 1st of June, 1827, with interest thereon, payable annually from the 27th of July, 1820. This deed was duly recorded, and is not questioned.
Edward Garland also held a negotiable note of Wilson C. Nicholas, endorsed by Lewis Nicholas, dated July 23, 1819, payable 30 days after date, for $13,800. These three debts, together with one due to Saunders, upon a note of Wilson C. Nicholas endorsed by Lewis Nicholas, for about $7,000, and which was in suit against Lewis Nicholas, before the arrangements hereafter mentioned were entered into, were the only debts of any consequence, due by Lewis Nicholas. And he states, that he never voluntarily engaged for these debts, except that to the Bank: that
Garland, having in vain endeavoured to get a security from Wilson C. Nicholas for his debt, forwarded the note which beheld to an attorney, (Mr. Dyer,) with instructions to bring suit upon it, expressing, at the same time, a wish to have the debt secured without litigation, and authorising the attorney to make any arrangements to that effect. A writ was ordered on this note, on the 23d of December, 1820, but never issued, in consequence of 1he arrangement afterwards made. In pursuance of Garland’s instructions, his attorney entered into negotiations with Lewis Nicholas, and the latter expressed a willingness to secure the debt; but before any thing was done, it was proposed by Wingfield and Coleman, the sons-in-law of Lewis Nicholas, that if Garland would make a considerable discount, (the amount of which was communicated to Garland by his attorney,) they would purchase his debt, and give their own bond for the amount to be paid to him. Garland’s attorney communicated this proposition to him, and informed him, “ that it was understood, that Lewis Nicholas intended to sell all his property at public auction, and was willing to secure Wingfield and Coleman, as the owners of Garland’s(S.C,bt; and itwas also understood, that Wingfield and Coleman intended to bid at the sale, to the amount of the said debt; and it was further proposed by Wingfield and Coleman, more effectually to secure the amount to be paid to Garland, by incumbering, for that purpose, any property which they might purchase at the sale.” The attorney was unwilling'to accede to the terms proposed, without Garland’s sanction in person, and wrote to him, requesting him to go to Albemarle, that he might be consulted on the subject. Garland went to Albemarle, and after much hesitation, on account of the heavy discount re
These arrangements were made on the 18th day of January, 1821. That is stated to be the date of the bond to Garland for $13,000, said to be given by Wingfield and Coleman, in their deed to trustees for Garland, of the 15th of February, 1821, hereafter to be noticed: and that is the date of the deed of trust, given by Lewis Nicholas to trustees for Wingfield and Coleman, spoken of in Garland’s answer. Garland was privy to the terms of this last mentioned deed; as was Dyer, his attorney. Garland’s answer admits the first, and Dyer, with Harris, the attorney of Lewis Nicholas, and Wingfield and Coleman, are subscribing witnesses to the deed. The original deed exhibited by Wingfield and Coleman, is here by subpoena duces tecum, and it appears to me, by inspection, that Dyer wrote about one half of the deed, from the beginning-down to the description of the land conveyed, and Harris the remainder.
The particulars of this deed, (although it is not recorded and cannot be relied upon as giving any title,) are material. The original deed, as it was executed, is between Lewis Nicholas of the one part, Wingfield and Coleman of the second part, and T. J. Randolphaná C. Cocke of the third part; and recites, that “ the said Lewis Nicholas is justly indebted to Edward Garland as endorser of a note drawn by Wilson C. Nicholas, bearing date the 23d day of July, 1819, negotiable and payable thirty days after its date, at
Neither Nicholas’s note, nor Wingfield and Coleman’s bond, are exhibited. We have not the written evidence which exists, as to what passed bétween Garland and Wingfield and Coleman, on this occasion. If we had this evidence, we might see whether Garland endorsed the note to Wingfield and Coleman; and if he did, whether it was specially endorsed, without recourse to him; or, whether their bond is unconditional or otherwise. I doubt whether the note was really sold to Wingfield and Coleman. The deed, in its original form, declared that, they had paid it to Garland, on the part of Lewis Nicholas; and, that it was intended only to secure and save them harmless; a stipulation perfectly proper, if
The deed proceeds, in consideration of one dollar paid by Wingfield and Coleman to Lewis Nicholas, to convey to them the lands on which he resided, containing 2100 acres, more or less, five negroes by name, (this was the residue of Lewis Nicholas’s land and negroes, after taking out the land and negroes conveyed to Coleman, and the negroes conveyed in trust for securing the debt to the Bank,) and also, his_equity of redemption in the slaves conveyed to secure the debt to the Bank, his stock of horses, cattle, hogs and sheep, all his plantation utensils, household and kitchen furniture, all the meat on hand, all his beds, bed clothes, and furniture of every description, a four wheel carriage, a waggon and two carts, and the crops of grain on hand, and what may be made hereafter; to have and to hold to Randolph and Cocke, in use and trust for Wingfield and Coleman and their heirs for ever; with authority to Randolph and Cocke to sell the whole of the-land and other property for cash, after ten days notice of the time and place of sale, by advertising the same at the door of the court-house of Albemarle county, and out of the proceeds of sale, after paying expenses, to pay the said note, interest and costs, and the balance, if any, to Lewis Nicholas.
In the Enquirer of January 25th, 1821, an advertisement appeared under date of January 20th, and with the signature of Lewis Nicholas, notifying that on the 15th day of February, 1821, he would sell, on the premises, for cash or on a short credit, as he might choose on the day of
On the 15th of February, 1821, the sale was made professedly for cash, and Wingfield and Coleman were the purchasers of all the property sold that day, save one horse purchased by Omohundro; and the next day, they purchased the residue of the personal property, down to a set of razors, old case and brush, whether at public or private sale, does’ not appear; and Lewis Nicholas gave them a certificate under his hand and seal, at the foot of a schedule of the articles professed to be sold, that he claimed no right or title in any of the property, nor any control over it. This is dated February 26th, 1821. The amount of the sales to Wingfield and Coleman, waá $ 12,946 30 cents. There was no competition in the biddings, except in the purchase of the horse by Omohundro, and Wingfield and Coleman bid against each other for the land. The general impression, amongst those who attended the sale, was, that it was a mere contrivance to protect Lewis Nicholas’s property from Hives’s claim; and Wingfield and Coleman, (who, as long as the amount of their purchases kept within the amount of their claim, had no motive to bid low, so that their claim covered the whole property,) might obviously have bid what they pleased; and, indeed, without frustrating their object, bid againsteacb other. Accordingly, the property sold for little more than half its cash value, if indeed so much as that.
To see this sacrifice of the personal property, it is only necessary to inspect the list of sales, and compare it, as to some of the items, with the evidence. Oats in the straw sold at 5 cents a hundred", and fodder at 6jj cent? a hum
The negroes conveyed to Coleman in June, 1820, were exposed to sale in mass, on this occasion, as the property of Lewis Nicholas, with Coleman’s consent, upon the advice of counsel that he had no title; and the land conveyed to him was conveyed with the residue of the tract to him and Wingfield, as if sold to them at this sale.
Wingfield and Coleman filed a cross bill, impeaching Hives’s claim as usurious. The Court of Chancery deci eed all the conveyances to be fraudulent and void as to Rives, and that his judgment was Valid and unimpeachable; and Garland alone appealed. The only question, therefore, for this Court to decide, is, whether Garland’s lieu be valid or void as it respects Rives; whether Rives’s judgment can be impeached in this way; and if it c-m, whether it. is infected with usury, or not.
As to the conveyance in consideration of a pretended marriage contract, it may be observed, that there is not a shadow of doubt as to the propriety of the decree. There was no such contract; nor does C.o/eman, in his answer, allege that there was. The whole case in truth was, that L< ivis Nicholas had frequently, in conversation with his neighbours, said that he should make his children equal, and that the law made the best will. Coleman had heard of these declarations, and Lewis Nicholas had advanced his daughter, Mrs Wingfield. upon her marriage.
It is impossible to look at the particulars of these transactions, without a conviction, amounting to absolute certainty, that on the part of Wingfield, and Coleman, and Lewis Nicholas, the motive, under which it is attempted to cover and protect, these transactions (the preferring a just creditor, and securing the payment of a just debt,) had not the weight of a feather with them: that their sole motive for dealing with that debt as they did, was to enable them by means of it, to prevent'Rives, and perhaps Saunders, who were prosecuting their suits, from getting satisfaction to the amount of a cent, out of the property of Lewis Nicholas; and at the same time, to secure to Wing-field and Coleman, the sons in law of Nicholas, his whole property, except the slaves pledged to the Bank, at ahout half its value, upon a credit of ten years, without interest;
As to Garland, I have not a shadow of doubt, that, as he states in his answer, his only motive for taking the part which he did in these transactions, was to secure as much of his debt as, by any means, he could under existing circumstances; and thaf he would have preferred a direct security from Lewis Nicholas, to the course which was taken; and which he yielded to from necessity, as the only means of securing any thing; although he knew the purpose for which these arrangements were proposed by Lewis Nicholas and Wingfield and Coleman. When Lewis Nicholas declined to give a direct security, and Wingfield and Coleman made their propositions, a full outline of their scheme* and the use they intended to make of his debt, was communicated to him. If this did not, at the first blush, satisfy him that their design was to make a fraudulent use of it against Nicholas’s creditors, he ought to have been convinced upon that point, when he and his counsel, on the 18th of January, 1821, were apprised of the terms of the deed of that date, which provided for the sale of Nicholas’s entire property for cash, upon ten days notice, by advertisement at the court-house door only, to indemnify Wingfield and Coleman to the amount of the whole
It could hardly be contended in a Court of Law, that this conveyance to Wingfield and Coleman, was not fraudulent and void as to the creditors of Lewis Nicholas. The Statute of Frauds, avoids all conveyances contrived of covin, malice, fraud, collusion or guile, with intent or purpose to delay, hinder or defraud creditors; except in cases where, though the grantor has a fraudulent intent, the purchaser acts bona fide, and gives a valuable consideration. Without the bonafides on the part of the grantee, the valuable consideration has no effect in rescuing- the transaction from the literal terms and spirit of the Statute. If Wing-field and Coleman could be considered as bona fide creditors for % 13,000, and had aimed only at securing or getting payment of the debt, they would have been protected by the proviso of the Statute, no matter what had been the fraudulent intent of the grantor. But, the moment they passed this line, and mixed with this object, that of delaying, hindering, or defrauding creditors, any conveyance made in furtherance of this compound object, was absolutely void, and they were left (as they were before they attempted the fraud) creditors without a security. “ Quod alias justum et bonum est, si per fraudem petatur, malum et injustum ejficitur.” One and the chief object with them, if not the sole motive for the part they acted in these transactions) was, by covin with Lewis Nicholas, to delay, hinder and defraud all his creditors, except Garland.
The Statute of 13 Eliz. against fraudulent conveyances as to creditors, has this proviso; “ that this Act, nor any thing therein contained, shall not extend to make void any estate or conveyance, &c. had, made, &c. or hereafter to be had, made, &.c. which estate or interest, is or shall be upon good consideration and bong fide lawfully conveyed or assured to any person or persons, not having, at the time of such conveyance or assurance to them made, any manner of notice, or knowledge of such covin, fraud or collusion as aforesaid. ”
The Statute of 27 Eliz. for securing subsequent purchasers against conveyances intended to defraud them, had a proviso to the same effect as the above stated proviso of the 13th Eliz. except that the words in italics, at the close of the proviso of the 13th Eliz. as above quoted, were omitted in the proviso of the 27th Eliz. The reason of this difference, in the terms of the provisos of these Statutes, is obvious. If a conveyance were intended to defraud subsequent purchasers, that intent could-not possibly be known to have existed, until a sale was actually made by the vendor to a subsequent purchaser; and if a purchaser for valuable consideration, procured a conveyance from the fraudulent grantee before any other made a purchase from the fraudulent grantor, then, at the time of the purchase from the.
But, as to fraudulent conveyances, to the prejudice of creditors, they were immediately void as to such creditors; and but for the proviso, the enacting clause might have avoided the deed made with intent to defiaud creditors, although that intent was confined to the grantor only, and was not known to the grantee. I do not, however, think that this would have been the effect, even of the enacting clause alone. The expression “ collusive,” can apply only to cases, in which both parties concurred in the fraudulent intent. However that might be, if the grantor and grantee bad colluded to defraud creditors, the conveyance would be absolutely void as to creditors; and the fraudulent grantee could not, but foi the proviso, have transferred ■ any title to a bona fide pu chaser from him. Nemo potest transferre ph s juris in alium quam ipse habet; and to guard against this consequence, was, I think, the chief object of the proviso. It provides for the validity of a conveyance to a bona fide purchaser for value, having no notice of the. covin, fraud, collusion or guile; such covin or
Notice to the purchaser from the fraudulent grantee of property conveyed with intent to defraud creditors, was important. Such a purchase, with notice of the fraudulent intent, would be a fraud; because, it would tend to assist the consummation of the fraud, in prejudice of the known existing rights of creditors, who, but for such purchase, would be enabled to reach the property fraudulently conveyed. It was for this reason, that the proviso of the 13th Eliz. excluded from its benefit, purchasers with notice of the fraud, expressly; although the effect of the proviso would have.been the same, if this special provision, as to purchasers without notice, had been omitted. The former member of the proviso had only preserved the interests of bona fide purchasers for value; and a purchaser, with notice of the fraud, would not have been a bona fide purchaser, and so not within the proviso. This, I think, is the reason why the Legislature of Virginia, in transferring the substance of the two English Statutes into our Statute of Frauds' and Perjuries, has adopted the substance of the provisos of both the English Statutes, omitting that part of the proviso of the 13th Eliz. which speaks of purchasers without notice, as superfluous in the case of creditors, and improper in the case of subsequent purchasers. The proviso of our Statute is in these words: “This Act shall not extend to any estate or interest in any lands, &c. goods, &c. which shall be, on good consideration and bona fide, lawfully
Considering Garland then, as he really was, from the moment he assigned Leíais Nicholas’s debt to Wingfield and Coleman, and took their bond, as no longer a creditor of Lewis Nicholas, but of Wingfield and Coleman, and as being a purchaser from them, for the security of their debt to him; and, as having, as he really had, full notice of the fraud, and of the invalidity of their title. He could, upon general principles of equity, acquire no better right than they had; and upon the terms of the Statute, cannot be protected as a bona fide purchaser. Pie stands, to all intents and purposes, in their shoes.
Suppose, however, that to avoid the consequences of Garland’s claiming, as he does, as a purchaser from Wing-field and Coleman, for securing a debt due from them to him, with full knowledge that they had no title as against Nicholas’s creditors, we were, as it is contended we ought, to consider him as still virtually a creditor of Nicholas,
It is however insisted, that although Garland’s trustees have no legal title, which they could assert in a Court of Law against that vested in the Sheriff by operation of law, for the benefit of Rives, or the lien of Rives’s judgment and Ca. Sa. executed; yet, when the latter applies to a Court of Equity to aid in enforcing his legal rights, that Court, upon its general principles, will not assist him, further than by subjecting the property to Rives’s claim, after first satisfying Garland; and various classes of cases supposed to be analogous to this, aré referred to, as illustrating the principles upon which a Court of Equity acts in such cases.
Before I examine the cases relied on as to this point, I premise, that a Court of Equity, in all cases of actual fraud, has a concurrent jurisdiction with a Court of Law, in remedying the fraud; and the remedy in equity is frequently more beneficial than at law, by means of its power to compel discovery, and to cause fraudulent deeds and securities to be cancelled, or conveyances to be made; thus effectually putting an end to future litigation. In these cases of actual fraud, equity follows the law, and gives relief to the full extent to which a Court of Law could give relief. Bennet v. Musgrove, 2 Ves. sen. 51; a case which will be more
The invariable maxim of equity is, that he who askg equity must do it. But, this maxim is confined exclusively to the cases, in which there is an equity between the parties; where, although the plaintiff is entitled to relief, he yet owes, in' conscience, (though possibly not at law) a debt or duty to the defendant. Francis’s Max. 1. In such cases relief is given, on the condition, that the plaintiff does, « hat in conscience he' is bound to do, to the defendant. An ..equity which any third person may have against the plaintiff, can never be available, under this maxim, to the defendant.
In this case, neither Garland, nor any other, has any equity against Eives: Between two creditors engaged in a race of diligence, in seeking a prior right to satisfaction out of the debtor’s property, there can be no equity. It is the tabula in naufragio ; and-he who obtains th& prior legal right to satisfaction, must prevail, both at law and in equity. Where the equity is equal, the law shall prevail.
To this maxim, that he who asks equity, must do equity, to the person from whom he asks it, are to be referred very many of the cases cited in the argument; as, the cases of conveyances, bonds or judgments, or any other securities obtained by fraud; the cases of usury and annuities, in which the securities are void by Statute. In such cases, the plaintiff, who asks the aid of a Court of Equity to relieve him against the vitious security, is bound, in equity and conscience, to refund to the defendant against whom
Another class of cases relied upon, is that which shews the extent of favor shewn by a Court of Equity to creditors, and bona fide purchasers without notice. These cases cannot apply here. Garland is not a bona fide purchaser without notice; and although a creditor, so is Rives, both equally entitled to favor. There is no instance, in which, as between creditors, he who has obtained the legal advantage, has not prevailed.
The next class of cases insisted on, is that in which it has been held, that a conveyance to several grantees may be void as to one, and good as to another; as in case of a marriage settlement, in which interests are given to those who are strangers to the consideration. The deed would be good as to the wife, and all coming within the considerations of the deed, but void as to all the rest, so far as creditors are concerned. The wife would be a bona fide purchaser for value; the strangers, mere volunteers. So, if a deed be made to secure a just debt, and the equity of redemption is reserved to a stranger, or to the family of the debtor; such a deed would be good as to the creditor, and void as to the reservation of the equity of redemption. In such cases, the limitations to volunteers are void, not because there is any actual fraud, but because of the want of valuable consideration. The wife or creditor, in such cases, might not know that the grantee had any fraudulent intent; as he might not in fact, and they would have no concern in the disposition of the surplus interest of the grantor. But, if the creditor, in such case, were to concur in any actual fraud, with intent to frustrate, the rights of other creditors, as in lending his aid, in any way, to give colour to any consideration, falsely alleged, as the inducement to such a reservation of the equity of redemption, such his concurrence in the actual fraud of the grantor, would avoid his deed, as to the creditors intended to be injured thereby.
It is lastly asserted, that there is another class of cases, in which, when it is doubtful, whether the conveyance impeached, was or was not founded in an actual fraud and collusion, to defeat or delay creditors, a Court of Equity will take a middle course, and allow the deed to stand as a security for the money really due, and give to the creditor the surplus; and a decision of Chancellor Kent of New York, to this purpose, is cited. Boyd v. Dunlop, 1 Johns. Ch. Rep. 478.
With great and habitual respect for the opinions of this distinguished Judge, after examining the authorities which he cited, and those cited in the argument of this cause, I cannot think that the principles asserted in that case, are supported by precedents, or sanctioned by any just reasoning-
If the conveyance is impeached upon the ground of actual fraud, intended to defeat or delay creditors, and the allegation of fraud is supported by proofs, the deed ought to be set aside in tofo, and cannot stand as a security for any purpose of reimbursement or indemnity. Sands v. Codwise, 4 Johns. Rep. 536, 598, 599. If it be not supported by proof, I can see no ground, why the Court should deprive the defendant of the benefit of an advan-_ tageous purchase, fairly made, so far as respects the creditors, upon the mere suspicion, that a fraud upon creditors was intended.
The only eases cited in Boyd v. Dunlop, bearing upon this point, are Herne v. Meeres, 1 Vern. 465. 2 Bro. Ch. Cas. 177, note S. C. and Bennett v. Musgrove, 2 Ves. 51. All the other cases, (How v Weldon, 2 Ves. 516, Proof v. Hines, Cas. Temp. Talb. 111. Grove v. Watt, 2 Sch. & Lefr. 492, &c.) are cases in which the grantor sought relief against his own contract, and.was subjected to, equitable terms. The case of Barwell v. Ward, 1 Atk. 260, was cited in the argument as bearing on the same point. These cases are all (as far as I am informed,) that are to be, found in the English books, affecting this question.
The case of Herne v. Meeres, was decided in 1687; that of Barwell v. Ward, in 1744; and that of Bennett v. Musgrove, in 1750; and in the last case, I have no doubt Lord Hardwicke, who decided Barwell v. Ward, intended to state distinctly the grounds upon which those cases were decided.
Herne v. Meeres, as reported in Vernon, is to this effect: The bill was by creditors of Cox against Meeres. Cox was outlawed and absconded. Meeres purchased from Cox, wilh notice of all the facts, a life-estate at three or four years purchase. The creditors, afterwards, obtained a judgment, and filed their bill to be relieved against this purchase as a trust, or else as a fraud, it being at a great under value. The Court is reported to have said, “The
It is difficult to extract from this reasoning, the principle on which relief .was given. There is no intimation of any suspicion of a collusion to defraud the creditors. The reference to the trust, the inadequacy of price, and the distressed circumstances of Coa;, would tend to shew, that the transaction was a fraud upon Cox, against which he might be relieved; and the terms of the decree, as stated from the register in 2 Bro. Ch. Cas. 177, (n.) seem to place the relief on that ground. It states, that “the bargain made by Sir T. Meeres with Cox, was not fairly obtained, in respect of the circumstances Cox was in; but ought, in conscience, to be made void, the premises purchased by him, being more than double the value of the money paid by him, and therefore he should be considered as a mortgagee.” I think this case proceeded upon the principle stated by Lord Hardwiclce, in Bennett v. Musgrove; the substitution, in equity, of a judgment creditor, to the right
The case of Barwell v. Ward, decided by Lord Hardwicke, in 1744, was this: The defendant’s brother conveyed to her the moiety of a reversionary estate, for less than half its value; and in a month after, was committed to jail, and became bankrupt by failing to give bail, for two months. By the Chancellor: “The present is a plain case, and appears to be a fraudulent conveyance to cover the estate, for the deeds were executed when Ward was in declining circumstances.” “No more than 60/. paid for the moiety of an. estate in reversion, of the value of 39/. a year, which is pretended to be redeemable upon the payment of 60/. but no clause of this kind is in the deed itself; for, it is an absolute bargain- and sale. The Court in this case, ought to do no more, than to let the deed stand as a security for the' money really and bona, fide advanced;” and accordingly ordered an enquiry as to the amount. It iá difficult to ascertain, from the report of this case, upon what principle the Court proceeded, if not upon this: that the assignees were entitled to assert the rights of the bankrupt, and asserted their claims in that character; and that the conveyance was admitted by the defendant to be redeemable.
If, however, the rule laid down in Boyd v. Dunlop, as deduced from those cases, be the true rule, then this case does not fall within the rule; since it is a clear case of actual and gross fraud in Wingfield and Coleman; and Garland is a purchaser from them, with full notice of the fraud and invalidity of their title. If the rule I have gathered from those cases is the true rule, then there was, in this case, no fraud or imposition on Lewis Nicholas, of which
Upon those scanty and equivocal materials, vve are urged to sanction the doctrine, that a Court of Equity will allow a party to advance his money, with a view to enable a debt- or to secure to himself or his family, fraudulently, all his property against his creditors, except what may be necessary to re-pay the money advanced; or, a creditor to permit his debt to be used in like manner; and when the fraud is detected and exposed, to suffer the deed, declared by the Statute to be utterly void as to creditors, to stand as a security to their prejudice, for the money advanced or the debt due. So, that the experiment would be made, without hazard to any party concerned. This, I think, would be to repeal the Statute. It would offer the greatest temptation to such fraudulent experiments; and the delay, at least, which is commonly one of the principal objects of such transactions, would be effected without loss to the parties concerned in the fraud.
The only enquiry which remains to be made, is, whether it be competent for the appellant to impeach the judgment, on which the appellee’s claim is founded, on the ground that the original transaction was usurious; and if he can, and should succeed in impeaching it, whether Rives’s claim would be thereby wholly avoided, or relief given for the usurious excess only.
It seems, from the case of Scott v. Nisbett, 2 Bro. Ch. Cas. 640, that a plaintiff, coming into a Court of Equity, and claiming by force of a judgment at law, any third person, affected by the judgment, may resist the plaintiff’s claim, upon the ground that it is usurious, if that question had not been tried and decided at law; and in such ease, the Court of Equity will adopt the same rule, that prevails when the usurer is a defendant in equity; relieving only as to the usurious excess. It is, however, unnecessary to examine these doctrines.
If a Court of v Equity could, in this ease, pronounce this transaction usurious, upon the very same facts, on which the Court of Law and jury have pronounced it not to be usurious, then it would virtually be an appeal from the Court of Law to the Court of Equity; and the Court of Equity would re-examine the judgment of the Court of .Law, and virtually reverse it. This is not within the jurisdiction of a Court of Equity; which relieves against judgments at law, not because they were wrong, but because of some new matter, which the Court of Law did not, or could not, pronounce a judgment on, or which, for some just cause, the party could not bring to the consideration of the Court of Law. Whether the transaction in question, was a loan or a sale, was emphatically proper for the
Upon the whole, the decree is right, and should be affirmed.