17 Wis. 383 | Wis. | 1863
By the Court,
This is an equitable action brought for the purpose of setting aside two judgments which were entered upon notes and warrants of attorney, and to have the notes declared void on the ground of usury. The material facts of the case are these: In June, 1857, the appellants borrowed of Peckham the sum of twelve hundred dollars,
The circuit court dismissed the complaint and permitted the judgments to stand as valid. The grounds of this decision are not given, and we are therefore in the dark as to the view the, circuit judge took of the questions involved. However, we have not been able to bring our minds to the same conclusion, and think that the judgment is erroneous.
There will be no controversy about the correctness of the proposition, that if the notes upon which the judgments were entered were void, a court of equity will relieve against them upon equitable principles. What conditions should be imposed, and whether the appellants should be exonerated from paying anything further upon the usurious loan, is a question which will be adverted to in a subsequent part of this opinion. For the present, we shall address ourselves to the question whether the notes upon which the judgments were entered were usurious and void. Those notes were given under the
Usury is defined to be the taking of more interest for the use of money than the law allows. To constitute the offense, there must be an agreement, that he who has the use of money shall pay the owner of it more than lawful interest, that is, more than the law permits to be paid for the use of money. 2 Parsons on Con., 388 et seq. It is entirely immaterial in what manner or form, or under what pretense, the usury is exacted and paid; the contract will not be held good merely because upon its face and by its words it is free from taint, if substantially it be usurious. Courts look at the substance of the transaction, without regard to the shifts by which it is endeavored to avoid the provisions of the statute. Nor do courts of equity, even, as we understand the ground upon which they proceed in granting relief from usurious contracts, attempt to break up and separate such contracts into parts, so as to render one portion of the contract innocent and legal, while all the vice is thrown upon some other part. 'They merely say to a
It follows from this, therefore, that the notes upon which the judgments were entered were void. What is the consequence,
. The appellants are not exonerated from the payment of the principal sum secured to be paid by the notes given under the law of .1856. This is still a subsisting indebtedness, and we think a court of equity may require it to be discharged, subject to the deductions above indicated, as a condition to setting aside the judgments, and cancelling the notes and warrants of attorney upon which they were entered.