Poppleton v. Nelson, 12 Or. 349

Poppleton v. Nelson

12 Or. 349 | Or. | 1885

Loud, J.

This is a suit in equity to forclose a mortgage. The defense is usury. This is the main question involved, and is one of fact, which needs to be proved by clear and satisfactory evidence. As the defense of usury involves a forfeiture, it is considered as an unconscionable defense, and a strict one. To establish such a defense the court requires clear and cogent proof, and will ngt accept vague inferences, or mere probabilities, or resort to conjectures, to aid the defense. The burden of *351proof is on the defense, and he must sustain his allegations by a clear preponderance of evidence “ He is impeaching his own solemn obligation under seal, and must establish the facts necessary to constitute it, beyond reasonable doubt. It is not sufficient to show an even balance of testimony; there must be a clear preponderance. Usury is a defense not favored in equity; the old consequences, the forfeiture of the whole debt, was so severe a penalty that it was considered unconscientious.” (Zabriskie, Chancellor, in Conover v. Van Mater, 18 N. J. Eq. 487.) “The burden of proof,” said Depue, J., “is on the defense, and the defense cannot be supported by probabilities or suspicions, however strong. If allowed to prevail, it must be supported by such preponderance of evidence as establishes the truth of the allegations on which it depends beyond a reasonable doubt.” (Taylor v. Morris, 22 N. J. Eq. 612; Brolasky v. Miller, 8 N. J. Eq. 789; New Jersey Pat. T. Co. v. Turner, 14 N. J. Eq. 326.) And again he says: “ If the defense of usury should ever be sustained upon the uncorroborated testimony of the party by whom the security was made, the testimony should be in all respects unexceptionable.” (See also 1 Jones Mortg. § 643; Tyler Usury, 122.) These references are sufficient to show how the defense of usury is regarded in equity, and the strictness of proof required to support it. As by our statute such a defense involves by way of penalty the loss of the debt, the proof of ■ it ought certainly to be clear and satisfactory. After careful examination of the evidence, we are satisfied the charge of usury is not sustained. There is no clear and direct proof, and the inferences and conjectures sought to be drawn from some of the facts are too unreliable on which to base a conclusion.

The decree'of the court below must be affirmed.