Williams v. Hance, 7 Paige Ch. 581

Williams v. Hance

7 Paige Ch. 581 | New York Court of Chancery | 1839

The Chancellor.

The vice chancellor was clearly right in supposing this mortgage was usurious, notwithstanding the denial of the defendants, in their answer, that they intended to violate the usury law. The respondent was neither legally nor equitably indebted to them for any part of the travelling expenses from New-York; and although he did, as they allege in their answer, voluntarily agree to pay the half of such expenses, it is evident that such agreement was in consideration of their forbearing payment of the real debt, for the term of three and four months. It was, therefore, a stipulation to receive $20 which was not due to them, in addition to the legal interest, for the forbearance of money due; and was a direct violation of the statute of usury.

*583As the defendants had a right to insist that their money, when it became due, should be paid to them at their place of residence, if the debtor, in consideration that they would make the money payable at his residence instead of theirs, had agreed to give the difference of exchange between the two places, I see no objection to such a stipulation; provided it was not a mere device to evade the usury law and to obtain more than legal interest. It does not appear in this case, however, that the mortgage was made payable at the complainant’s place of residence ; and if no place of payment was stated therein the money was payable where the mortgagees resided, unless the mortgagor should pay it to them when he found them from home. Upon a mortgage conditioned to pay the money to the mortgagee generally, without specifying any place of payment, it would be clearly usurious to stipulate for fifteen days additional interest, on the alleged ground that it would take that time to get it from the residence of the mortgagor; as he would be legally bound,bythe contract, to pay interest until the money was paid at the place where by law it was payable, the residence of the mortgagee.

The order appealed from must be affirmed, with costs.