Spaulding v. Davis, 51 Vt. 77

Spaulding v. Davis

51 Vt. 77 | Vt. | 1878

The opinion of the court was delivered by

Kedfield, J.

On the 25th of November, 1872, Warren Spaulding (plaintiff’s father), obtained a loan of the defendant of $1,000, and mortgaged his farm as security therefor to one Nathan Parker, and with a condition in the mortgage that he should pay to said Parker in trust seven promissory notes of the same date, six for the sum of $80 each, the first payable in one year, and annually thereafter for six years, and one for $1,000, payable in six years from date. The plaintiff purchased this farm of his father March 31, 1873, and assumed and agreed to pay these notes. On the first day of January, 1875, the plaintiff hired $2,000 of the defendant, and gave his notes and mortgage to said Parker to secure $2,150, specified in four promissory notes, in the last of which $150 usury was included. The plaintiff was sued for the interest on these notes, and paid it up to October 1, 1876. The plaintiff has also paid the several $80 notes, given by Warren Spaulding, and seeks to recover in this suit all usurious interest paid on the notes secured by such mortgage.

I. The defendant testified, and now claims, that the notes were made payable to Parker, or bearer, in trust for the benefit of the defendant’s children and grandchildren, and that recovery can only be had of Parker, if of any one. The court has found that Parker was not trustee, but the agent of the defendant, and that all payments on the notes were subject to the control, and *79for the benefit, of the defendant, and that he was all the while the owner of the notes. The facts found and stated in the case conclude the parties, and there is no question of law arising upon this part of the case.

II. We think this plaintiff cannot recover back the usury paid on the notes of Warren Spaulding. The right of action in such cases is personal to the contracting parties. See Nelson v. Cooley, 20 Vt. 201; Low v. Prichard, 86 Vt. 183; Lamoille Co. Nat. Bank v. Bingham, 50 Vt. 105; Reed v. Eastman, Ib. 67. The sum paid eo nomine as interest on the usurious sum included in the notes and mortgages given by the plaintiff, he may recover in this suit. That sum we compute to be $16.15.

Judgment reversed, and judgment for the plaintiff for $16.15 and interest since October 1, 1876.