Steward v. Downer

8 Vt. 320 | Vt. | 1836

■3?hd opiiiio/i'df tiie’cddrt' wai delivered'by

Rebi-ield',' J’.

It is appálém5 froiri1 thé texAris'’ of1 the' statUtfe,' áhd subir ihttaéd,'hab' taiig-been'the settled' CótiStrüCtióh'of similar' statbfes",'fiigt'fhé páyniéhtytó cónsiitut’é üsiiry,'must' lie" in' ptffsti1" aticé of a1 pfévioüs'corrupt'agreement1.' If is" riot íiéCéssary tip' ill1 quire whether the paymerit'riiiist' specifically correspond' With'thé' terms' of the' contract. It riíuát5 bé . a! Voluntary' pay ífiént’, arid1 a1 payment niadé in'éonsuníiiiátióri'of the' previous corrupt' bargain;'

Ih'this'case it'¡¿"apparent the' original' có.nir'act' wa's ^sufficiently' corrupt'1 ahd' usiifiods blit'1 it'is”equally evident tha’i;' no' voluntary páy'nbéntta'ri'tlia'f'c'tíriti'ac’t1 Irás’ bééri' riiadé." Tlié décf'e'é df ftirtt-' c^osure anc* possession of the mortgaged premises taken under it, no doubt operates as a payment of the entire debt if the premises be of sufficient value ; if of less value than the mortgage debt, then a3 paym.ent pro tanto. But this is a payment by operation’of law, and strictly in invitum. It is by virtue of ¿ decree made on motion of the debtor. But as the county court have pro hoc vice, chancery powers, we see no good reason to make- a distinction between this case and that of a docree in chancery. — Strong vs. Strong, 2 Aik. 373, and Lovell vs. Leland, 3 Vt. 581. There is no very obvious reason why any such distinction should be made,

And ^is presents another formidable objection to the plaintiff’s •recovery. This decree is to all intents a judgment, and as between the parties to the judgment, every defence to the original suit is foreyer put at r,est. Tii.e validity of the judgment cannot be again examined. The usury is as effectually purged as if the parties had by agreement deducted the excess of interest from the security, which has always been held to purge {h,e usury,

And if by the operation of the decree the party aggrieved is barred of any right to sue for and recover back the excess of interest, then no such right ever existed. Of course it could not hgye been delayed for “ one year” as the statute seems to pre-sup-pose in the remedy given to a common informer. And the statute only gives the common informer the same remedy which the party paying the usury had had, which in the present case is none at all.

And should we permit this plaintiff to recover, it must involve the absurdity of re-examining the former decree, which can no more be done in this case than if the suit had been brought in the name of the original debtor.

In every view of the case the judgment of the court below was clearly correct, and is affirmed.