1 Barb. 627 | N.Y. Sup. Ct. | 1847
Upon the statement of the facts respecting the alleged usurious agreement, and upon the proofs in the cause, the question arises whether there was any usury in the transaction proved.
If the bond and mortgage were usurious, it was not for any usurious interest included in those securities; for they were executed for the exact amount of the principal moneys due. It must, therefore, have been on account of the exaction of the payment of the interest upon interest, and the costs of the suit upon the note given by Wood, Baker and Lawrence, as a
(1.) As to the costs of the suit prosecuted against the maker of the note in question. It will be remembered that no interest had been paid on these contracts, for about the period of three years; and the note given to secure the interest that had fallen due before the assignment by Wood to Coming had been prosecuted to judgment and execution without collecting the money, though some of the witnesses were of the opinion that, by extraordinary diligence, the money might have been collected. Under these circumstances the plaintiffs commenced an action of ejectment to recover the land; and it was to settle this suit that the negotiation commenced, and was conducted by the parties. Now, had the defendant filed his bill to obtain relief from the legal forfeiture of his contract, would any court have granted it, without the payment of these costs, as well as the full amount due upon the contracts ? The defendant was the assignee of Wood, and subject to all the equities that existed against him. Wood had given his own note with two sureties, to secure the interest up to a given day. The plaintiffs made a fruitless attempt to collect this note, and failing in that attempt, they resorted to the land. Would it have lain in Wood’s mouth to allege that he had given them a security against himself and others, upon which a bill of costs had been incurred, by reason of his own default in paying it; and that it was inequitable in the plaintiffs to exact such costs as a condition of relief from the forfeiture ? Might not the plaintiffs say to him, “We consented to receive your note, not in absolute . payment of the interest due upon your contract, but as collateral security merely. We received it, under the obligation, if paid or collected, to apply it on the contract as payment; but if not paid, and by reason of such non-payment, a-suit should become necessary, then, that such suit should be prosecuted at your risk and costs ? You cannot complain of being subjected to any costs that were incurred and made necessary by your own neglect, and the violation of your own obligation. Nor does it lie in your mouth to say that a greater than the
(2.) As to the exaction of the interest due upon the contracts, ■ including the interest that had accrued upon the first amount of interest which had fallen due. It is, doubtless, settled in England and in this state, that this excess of interest cannot be collected by law, unless upon an agreement to pay it, made after the day of payment has passed. But it is equally clear that if it be paid voluntarily, it is not usury. It is paying no more than what is just and reasonable. A man agrees to pay $1000 at the expiration of five years from the date of his bond, with the interest at the rate of seven per cent annually: in other words, he agrees to pay $70 at the expiration of a year. Why should not that $70 draw interest from the time it falls due; in analogy to the legal obligation arising upon any other contract for the payment of money by a given day? If the same man had given his note or agreement to pay $70 at the end of a year, that instrument would carry interest upon the amount, from the day of payment. In relation to interest,- upon interest however, I repeat, the law is otherwise. But though not collectable, except by a subsequent agreement, this interest may lawfully be included in a note, by the agreement of the parties; and such note is not usurious. The case of Kellogg v. Hickok, (1 Wend. 521,) -is a direct adjudication of this principle. The question, however, that is presented by the pleadings and proofs in this cause, is a different one. And, though it is possible that a distinction might be taken between this "case and those reported in 7 Paige, 581, and 9 Id. 211, and in several other cases, yet I will assume, as the law of this case, that a reservation in a new security of compound interest that had accrued upon a sum previously due, against the will of the debtor, and as a condition of a forbearance upon the new security, affects the new security with usury, and makes it void. The question, thus, becomes one of fact, whether this excess of interest was exacted against the will of the debtor, and as a condition' of forbearance. It will be borne in mind
For these reasons, the decree of the yice chancellor must be affirmed, with costs.