5 Vt. 279 | Vt. | 1833
delivered the opinion ofthe Court. This is a bill brought by the complainant, to foreclose the equity of redemption- in certain mortgaged premises-. The bill charges, that the defendant, on the 4th November, 1828, executed the mortgage in question, to one Joseph-Rogers, to secure the payment of certain notes executed by the defendant to Rogers, of that date, one for five thousand dollars, payable in five years from the first of May, 1829, one for four hundred and fifty dollars, payable on the first of May, 1830, and four of three hundred dollars each, payable on the first day of May, in the years 1831, ’2, ’3 and ’4, at the bank of Vergennes. And that Rogers, for a valuable consideration, sold and assigned' the notes to the complainant. The bill further charges, that the premises mortgaged wrere subject to the incumbrance of two prior mortgages — one to Moses Catlin, wdiick had been-
The defendant, -by his answer, admits the giving the notes and mortgage to Rogers, but says, he employed Rogers as his agent to obtain money for him; that he executed •the the notes and mortgage to enable Rogers to obtain the -money and to assign the same as security therefor; that -Rogers assigned the notes and mortgage to the complainant for money advanced by the complainant to Rogers; -that the complainant knew that Rogers, in negotiating for said loan of money, and assigning the securities, acted as the agent of the defendant; that the contract between Rogers and the complainant was usurious and void — the complainant having reserved out of the loan one thousand and -sixty dollars, and paid to Rogers three thousand nine hundred and forty dollars, and no more.
To prove this defence, the defendant relies on the testimony of Joseph Rogers, who says very explicitly, that he was employed by the defendant to raise the money; that the notes and mortgage were executed to him by Barnura •to enable him to obtain money thereon; that he acted .solely as the agent of the defendant; that he so declared to the complainant when he first made application to him; that in all his conversations with the complainant, he avowed himself as the agent of the defendant; that he had no interest at all in the money obtained, and that the sum stated in the answer was all he received of the complainant. Indeed he testifies directly to the fact of usury.
There appears to have been a great irregularity in taking the testimony in this case, and a palpable violation of the -rules which govern proceedings in this Court. No interrogatories were settled ; but the witness came before the master with a prepared deposition, and the counsel for the parties examined and re-examined him, as they would a witness who testified, viva voce, in Court.
The defendant does not object to the plaintiff’s taking a .decree for the amonnt he paid to redeem the mortgage of Field ; but the mortgage executed to Rogers and assigned
The statute declares that all contracts and assurances whatever, on which more than lawful interest is reserved, .taken or secured, or agreed to be reserved ®r taken, shall he utterly void. .There can be no doubt, therefore, that where full and sufficient proof can be made of the fact, that .usury avoids a ^contract' in equity as well as .at law. In the exposition of this statute, as of all others, courts of equity adopt the same rules as courts of law ; y.e.t, i t has been said by án eminent Chancellor, “ it does often vary in the remedies given, and in the manner of applying them.” Equity never relieves against an usurious security, on the application of the person who executed it, except upon the terms of his paying what is really bona fide, due thereon, with legal interest.—Scott vs. Nesbit, 2 Br. C. C. 641.—9 Ves. 84.—16 Ves. 124. The rules of the Court in relation to practice, aré never dispensed with, to enable a defendant to defend on .the ground of usury, except on his consenting to a decree for the amount actually received with the interest. It has been said! with great propriety, by a writer on this subject, in a treatise on equity, that the Court, in many cases have a discretion,.whether it will interfere or not,' and may therefore prescribe the terms of its interference ; yet it will never exercise this discretion in favor of a plaintiff who is a wrong-doer, seeking to render a court of equity the means of effectuating the wrong.”— Fonblanque, 1 Vol. p. 22. The sum of money advanced, together with the legal interest, ought in'justice to be repaid by the borrower, although the contract dr security may be declared void by a statute founded wholly on principles of public policy. If there is any moral guilt in making ah usurious contract, b.oth parties aré equally guilty, though it may be extenuated on éithér side by the particular circumstances attending the transáction. ' The remedy afforded by the statute must be given, upon principles ap-‘ plicable to all similar cases without regard to the character of the parties, the exorbitancy of the sum agreed to be given as interest, or the circumstances which may appear either in extenuation or aggravation. Any sum knowingly .and designedly reserved in a contract above the legal inte.-
When usury is set up as a defence in a court,of equity, and the object of a party is to avoid a contract entirely, and appropriate to his own use the money of another, and avoid the payment by force of the statute, it must be fully and substantially proved ; and the evidence to prove it, is not aided by the answer of a defendant unless he is particularly called on, to disclose in the bill. The gratuitous answer of the defendant in this case, does not make his declarations .evidence; but is to be regarded as only equivalent to a plea of the statute of usury. This evidence should come from legal, competent and credible witnesses, or at least from the testimony of one unimpeached witness, who testifies under such circumstances that full credit is to be given to his testimony. It is not sufficient barely to raise a conjecture, or a probability merely that the facts may be as contended fo,r. A witness may s.wear to a fact, whose general character is unimpeached, and yet the nature of his testimony may be such, or the other circumstances detailed in evidence may be s.uch, as to lead to a doubt whether his testimony is entitled to credit, and makes it improper to proceed on his evidence alone.
Courts of justice have felt themselves compelled to receive testimony even from witnesses whose general character was unimpeached, upon which they could not recommend to a jury to find a verdict. It was declared by the Court in Virginia, that the testimony of a witness, tending to fix a fraud upon himself, ought not to be regarded. Claiborne vs. Parish, 2 Wash. Rep. 148. In relation to witnesses who have attested wills, and were afterwards called on ,to impeach .their .execution, Lord Mansfield often said, he would hear those witnesses, but would give .no credit to them ; and in this he was followed by Lord Kenyon. It will be readily acknowledged by every one, that the testimony of a witness who comes to cut down and destroy a security for money which he has either passed himself or aided others in passing, should be received with jealousy, and examined with great caution.
The witness, upon whose testimony alone .the defendant
In the first place, he appears, according to his own relation, as the friend and agent of the defendant, who received these notes and mortgage for the purpose of obtaining money for him ; and there can be no doubt, that it was originally contemplated that he should raise the money at •more than six per cent, interest. The giving the first interest note for four hundred and fifty dollars, shows most .conclusively, that this was understood by both of them. — - Now, if it can be supposed, as was urged in the argument, that it was originally designed and contrived between the defendant and witness, that the money should be obtained by stipulating to give more than legal interest, and this inducement was to be held out by the witness to his friends, to whom he was about to apply for the loan of the money, and at the same time, they intended to avoid the payment by force of the statute, it would very much detract from the character of the witness as a man of integrity, if it did not affect his credibility. The evidence, though it may lead to suspicions that such was the intention, may not warrant the inference directly that such was the fact.
If the witness in this transaction acted merely as the agent of the defendant, there was no necessity for any backwardness or reluctance in declaring all the circumsances, with which he was acquainted; and towards the plaintiff at least, from whom he obtained the money, and who was to lose entirely, the sum of about four thousand dollars, he should have shown the utmost frankness. It appears by his testimony, that, although he very readily drew off and and showed to the defendant, minutes of what he would testify to, and when he was written to by Mr. Waller, one
Again, there is an evident contradiction between the testimony of this witness, and the testimony of Thomas McDaniels, the son of the plaintiff- Rogers represents that he first presented himself to the complainant as the agent of the defendant, and to hire money for him; and repeats it several times: he says, that in all' his conversations and negotiations with the plaintiff, he declared that he had no interest in the business — that he was agent for the defendant — that he did not know that defendant would ratify the bargain, or “ bear him out,” as the witness expressed it — that he intended to be understood that he wanted to get, hire, or loan the money for Amos W. Barnum. Thomas McDaniels testifies that he was present at the time Rogers applied to his father for the money — that Rogers then said he wanted' to sell the notes and mortgage — that he had got to raise some money; and when the plaintiff declined to buy the notes, and proposed to have Rogers procuro certain persons named to sign a note with him, as
There is ariothef circumstátícé, which appéárV from the' testimony of Rogers, which casts sriCh an imputation on' it, as should induce us to pariSe at least before we pronounce a decree on his testimony alone. The witness1 came before the mhster as I havé already said, with'á prepared deposition. On being interrogated whether the paper then produced1, as the sübstaricé of his testimony, was' copied from any other' paper, he answered; that he made' rough minutes of his testimony, and then drew it off correctly on the paper produced. To another question he answers, that the paper produced, contains' a third more than the former one. His first sketch, he says, Ire showed to the defendant. He is then inquired of, whether he ever had in his possession any thing written by the defendant or an‘y other person; to which lie answers in the following words : “ General Barnum wrote dewn some sketches to know if I would testify so and so — stating what he #anted me to testify to : a part of my testimony now is copied from
• From a vie w of the whole case, considering the situation of the witness, Rogers — the part which he states he took in this transaction — His connexion with the defendant — his wariness, and want of frankness towards the complainant— the irreconcilable difference bejtween his testimony and that of Thomas McDaniels — the manner in which his deposition was prepared — his copying a part, which may have been all that was material, from a paper given him by the defendant — rhis not being able to state what has become of that paper, and not distinguishing what was copied from that paper, from the other part of his testimony -; — considering, also, that he comes to avoid by his testimony, a se-
The result is, that the complainant is entitled to a decree ; and it must be referred to a master to ascertain the sum due to him on his mortgage.