237 F. 104 | S.D.N.Y. | 1916
(after stating the facts as above). There are two preliminary questions of fact which require solution: First, whether Braker understood the character of the transaction at the time of its execution; and, second, whether the New York Finance Company had recourse to any life insurance policies as security for the advances.
I have no hesitation in finding that Braker understood the character of the transaction. He was at that time 44 years old, and had been engaged with money lenders in four transactions within the year. His testimony is therefore not only inherently unlikely, but he is contradicted directly by Cochran, Depue, and Mrs. Jewell,' and in effect by his wife, who says that Helfrich told her that, if her husband died before February 25, 1913, the company would lose its money, information inconsistent with the idea that it was an unconditional loan, as Braker now says. Furthermore, neither side dared call Helfrich, a consideration counting against the defendant rather than the plaintiffs, because it rests upon him to show that the transaction was not whát the documents make it appear. The burden of proof in such cases
I think it clear that the life insurance policies should not be taken as applicable to the transaction of February 25,' 1902, and yet it is only if they were so intended that they may be considered upon the question of usury. The parties meant Rabe to recover the whole face of the assignments of April 18 and June 13, 1901; they had no intention of regarding them as security for the advances. It is precisely on that account that one of them has already been held to be usurious, and that the other may be so held; at least, it has been challenged. If Braker were to die, the assignments became due; it was likewise the purpose of the parties, not that the policies should be security for a loan, but that Rabe should have the whole of them. At least, that is the way in which the documents read, and there is nothing to contradict them. The parties intended the transactions to take place just as they were written, and could not, therefore, have intended the policies to be available upon the transaction of February 25, 1902. It is irrelevant that they might have used the overplus of the policies to secure the repayment of February 25, 1902, if théy had regarded the Rabe advances as loans, because they did not consider that they were loans at all. On February 25, 1902, they also tried to get a policy, and they would have affected the whole transaction with usury if they had succeeded; but their effort 'shows that they did not regard the existing policies as available upon this transaction. Moreover, even if they, had intended the policies to stand as security for the transaction at bar, their intent would have been ineffectual, because the Rabe transactions were void for usury, and with them fell the policies. I do not, indeed, think that the fact of tírese policies’ being void affects the situation, which must be controlled by the intent of the parties on February 25, 1902; but the argument was made that intent was not the measure, and it is a perfect answer that the policies could not be added security, because, being usurious, they were available for no purpose.
In this country it is uncertain just what is the true rule. In Pennsylvania the law was early settled as the statute of Victoria settled it in England in 1867. Davidson v. Little, 22 Pa. 245, 60 Am. Dec. 81; Re Jackson, 203 Pa. 33, 52 Atl. 125; Re Phillip, 205 Pa. 511, 55 Atl. 212. The same is true in Virginia. Cribbens v. Markwood, 13 Grat. (Va.) 495, 67 Am. Dec. 775 (an excellent discussion); Mayo v. Carrington, 19 Grat. (Va.) 74, 107. In two early cases, one in New York (Osgood v. Franklin, 2 Johns. Ch. 1, 25, 7 Am. Dec. 513), and the other in South Carolina (Butler v. Haskell, 4 Desaus. 651, 697), language was' used which certainly recognized the English rule, though it was not necessary to the decision. In Illinois the cases do not decide the point (Parsons v. Ely, 45 Ill. 232, Gary v. Newton, 201 Ill. 170, 66
I accept the Pennsylvania and Virginia rule as more appropriate to our modern society. We have no public concern for the preservation of family inheritances, and ought, I believe, have no tenderness towards expectants of rich reversions. It may be that the purchase of a remainder carries with it the burden of showing that there was no exploitation of extreme need, no beguiling of youthful heirs, and even that the ancestor consented, when there is one—a doctrine wery strange in American ears (Curtis v. Curtis, 40 Maine, 24, 63 Am. Dec. 651; Hale v. Hollon, 90 Tex. 427, 39 S. W. 287, 36 L. R. A. 75, 59 Am. St. Rep. 819; Boynton v. Hubbard, 7 Mass. 112); but I cannot believe that, in addition, it must be shown that the consideration was what the court may think adequate. Once the parties are shown capable of dealing with each other, I can see no possible reason for refusing them the right to malee their own bargain. Even allowing that youth or poverty in such circumstances create an incapacity to contract, there is certainly no valid reason in America for preventing the sale of expectancies. If it be not so, we shall find it necessary to permit it by statute, as was done in England, for the supposed protection to sfich persons foils itself; they become incapable of selling when they need to sell.
I have hitherto assumed that the consideration here was inadequate, and perhaps it was; at least, the purchaser cannot show that it was not. Yet the matter is surely open to doubt, for, although the remainder was ten times, or nearly, the principal with interest to February 25, 1913, the hazard was wholly unknown and unascertainable. Actuarial tables are founded upon average lives, and Braker’s was not such. His rejection by so many insurance companies proves that the hazard was not calculable, and it is quite impossible to fix the proper odds upon any basis but a guess. At least, we must concede that the consideration may have been adequate, though, were I to guess, I should say that it was not.
Except for that element, there is certainly no ground for interposing. Braker was 44 years old, and had had earlier experience in such matters. Even if the tutelage of his father would not have been pre: posterous under the circumstances, his father was dead; he was not an expectant heir, but a remainderman on his own estate for life. He had the assistance of Helfrich, an ambiguous intermediary, to be sure, but at least not shown to be of the lender’s party. Most important of all, he was already affluent; his income of $9,000 a year not only provided for his necessities, but gave him much greater wealth than of 99 men out of 100. I find it hard to have patience with the waterish sentiment which seeks to make such a man tire court’s ward, and to protect him against the consequences of his own folly. If he is to have the enjoyment of great wealth, let him share its responsibility. If the prospect of a dollar so teased his appetite that the future ceased to be a reality, either let him be regarded as an incompe
The last question is of the supposed prior conveyance by the New York Finance Company to Banes. At the trial I said that, if the trustee continued to press the point that the plaintiffs’ title was affected by these conveyances, the matter would have to come up again, because-it was not clear to me just what the situation was in that regard. If that matter, which certainly can be cleared up, is not pressed, the plaintiffs may take a decree as prayed, with costs, without further delay.