21 W. Va. 108 | W. Va. | 1882
announced the opinion of the Court:
This is a suit in equity brought in the circuit court of Greenbrier county in March, 1878, to subject the lands of the defendant, John A. Feamster, to the payment of the liens thereon. The plaintiff and a number of the defendants were judgment-creditors, while the debts of a number of the defendants were secured by deeds of trust, of which Eeamster, as appears by the bill and exhibits, had executed two; one on the 27th day of September, 1877, to A. E. Mathews trustee, to secure Wm. K. Snyder the payment of a bond executed by said Feamster to Snyder for seventeen thousand six hundred and ninety-seven dollars and sixty-six cents, and to indemnify said Snyder as the endorser on Eeamster’s note payable at the bank of Lewisburg, for seven thousand seven hundred and ninety-two dollars and thirty cents. This deed was admitted to record on the day of its date. The other deed conveying the same property, was executed by said Feamster outlie 27th day of November, 1877, to Preston and Spotts trustees, to secure James Withrow, as endorser on notes of said Eeamster to h large amount; also to secure other debts therein named, and on the day of its date it was admitted to record.
The cause was referred to a commissioner, and the amount of the liens and their priorities fixed. After the lands had been sold under a decree of the court, and report of sale un-excepted to had been confirmed, the defendant James Withrow, who had not before answered, filed his answer and cross bill, the main object of which was to attack the debt from Eeamster to W. R. Snyder as usurious, and to have it purged of its usury; and prays that the decree rendered in the cause at the May term 1878, may be reheard and reviewed, and the debt therein decreed to Snvder be purged of its usury, &c.
D. J. Ford & Son, judgment creditors of said John A. Feamster, also filed their petition setting up, that there was usury in the said debt from Feamster to Snyder and praying, that it be purged of said usury. The court decided, that the said petitioners and the said plaintiff in the cross bill, could not plead usury to the said debt of Feamster to Snyder, and dismissed both the petition and cross bill. By a deposition it appeared, that John A. Feamster, had paid Snyder one hundred dollars, for which he had no credit; but as the record shows, on the 21st day of July, 1880, W. R. Snyder in the clerk’s office of the circuit court of Greenbrier county, released the amount of the said one hundred dollars, and interest, from the amount that had been decreed to him against the said Feamster.
From the said decree dismissing the said bill and petition, the said Withrow and said Ford and Son appealed, and assigned for error, “that the court ought to have given a decree for the one hundred dollars, Snyder owed Feamster, and second, that the court ought to have purged the debt from Feamster to Snyder of its usury;” and charge, that the usury was clearly proven by the depositions taken in the cause. The release having been given of the one hundred dollars, before the appeal was allowed, takes that question from our consideration. It is argued, that it does not do so, as the release was not in favor of any one, but wras general. It certainly had the effect of placing one hundred dollars just where it ought to go. Snyder had the first lien. On that lien one hundred dollars had been paid by Feamster the debtor, and ought to have been credited. By the release he does credit it; his debt, which must be paid out of the proceeds of the land is one hundred dollars less, and the next creditor has his increased by one hundred dollars. It is insisted, that this Court by the decisions of Feamster v. Withrow, 9 W.
With a living man it is altogether different. The law does not compel him to plead the statute of limitations; it is a personal privilege that he can avail himself of or not, as he pleases. It might be greatly to his injury in his future business transactions to plead it, and therefore he might not choose to do so, and it would be hard on him, while living with business hopes and prospects in view, to permit another to force him into such an unenviable position. The same might be said as to the plea of usury.
Let us see what the authorities have said about the character of the plea of usury; whether it is personal to the debtor, or whether another, who may be benefited by it, may plead it without the debtor’s consent.
In Lyon v. Welsh, 20 Ia. 578, it was held, that in an action to foreclose a mortgage upon the homestead, executed by the husband and wife to secure a note executed by the husband alone, the wife may set up a plea of usury against the note. Judge Wright, who delivered the opinion of the court, says: “ The question is, whether the wife, who joined in the mortgage, but did not sign the note, can be permitted to plead usury. The mortgage was hi part upon the homestead of the defendants, and without determining whether it was also upon other lands, she could be heard to make this defense; we unite in the opinion that her interest in the
In The Mutual Life Insurance Co. of N. Y. v. Bowen, 47 Barb. 618, it was held, that “in a proceeding for the distribution of surplus money arising from the sale of mortgaged premises under a decree for the foreclosure of the first mortgage, the holders of a fourth mortgage may sot up before the referee usury in a third mortgage.” None but New York authorities arc cited in the case.
In the case of Merchants’ Ex. N. Bank v. Com. Warehouse Co., 49 N. Y. 642, Folger, Judge, refers to a review of the New York authorities on this subject by Jones, J., whoso conclusions are asfollows: “First — All privies to the borrower, whether in blood, representative or estate, niay both in law and equity by the appropriate legal and equitable remedies and defences attack or defeird against a contract or security, given by the borrower which is tainted with usury, on the ground of such usury, where such contract or security affects the estate derived by them from the borrower. Second— That a grantee or assignee of a borrower, who does not take his grant or assignment subject to a lien on the property granted or assigned, created by the borrower, which is tainted with usury, is privy in estate with the borrower, as to the entire interests in the property, described in the assignment or grant, as deriving from such borrower such entire interests, and, as such privy may attack, or defend against such lien, under the first rule. Third — But if a grantee, or assignee takes his assignment or grant from the borrower, subject to a lien on the property tainted with usury, then as
In Ladd v. Wiggin, 35 N. H. 421, it was held, that “the defense of usury is personal; and as against a subsequent purchaser, only the amount of the illegal interest is to be deducted from the amount due upon a mortgage.”
In Crenshaw Adm’r v. Clark et al., 5 Leigh 68, Carr, J., said : “If the injured pai’ty chooses to waive the matter (the usury) what right has a subsequent voluntary purchaser with full notice of the lien to take advantage of it.” Judge Tucker, page 70, said: “If the party who is the victim of the fraud or usury, waives his remedy and relieves his adversary, it does not belong to a subsequent purchaser under him to recall and resume the remedy for him.” In this case, the junior purchaser was not the purchaser of the equity of redemption, but of the mortgaged premises generally.
In Spengler v. Snapp, 5 Leigh 478, the court citing and approving De Wolf v. Johnson, 10 Wheat. 367, held, that “the plea of usury is a defense personal to the debtor, and so the purchaser of land subject to a previous lien, cannot object that the lien is usurious, but is bound to discharge the lien as a part of the price of the land.”
The great weight of authority conclusively shows, that the
From these authorities it is clear, that the plea of usury is a defense personal to the debtor, and therefore in his lifetime, his creditor cannot plead it, to defeat the claim of another creditor, either in whole or in part. And where a creditor is secured by a second deed of trust on the same property, he has but the equity of redemption, and cannot plead usury against a creditor secured under the first trust deed. See Tate v. Liggatt & Mathews, 2 Leigh 84.
As the foregoing authorities afford ample reason for dismissing the cross bill óf Withrow, and the petition of Ford & Son, we have thought it unnecessary to inquire whether if the defense was proper for them to make, it was made in time. For the foregoing reasons, the decree of the circuit court of Greenbrier county, dismissing said cross-bill and petition, is affirmed with costs and thirty dollars damages.
Degree Affirmed.