Lead Opinion

FROM CARROLL CIRCUIT COURT. The plaintiffs claim to recover this money of the executor in his private capacity. The claim is, that he has so conducted himself that he is liable to be sued in his private capacity; and, if the plaintiffs can recover, execution may be had against him, to be satisfied de bonis propriis, and, as the declaration stands, entirely irrespective of the condition of the assets of the estate in his hands.

I understand the effect of the authorities to be, that, whenever a party has knowingly violated the law by taking usurious interest, the money which he has so taken is money which ought, in equity and justice, to be considered as money had and received to the use of the other party. Willie v. Green, 2 N.H. 333; Cross v. Bell, 34 N.H. 86, and cases cited. It is the doctrine of the cases that always the payment of unlawful interest is the result of *Page 355 oppression, and that always the receipt of unlawful interest is oppressive. The party so paying is considered as paying under duress, and so not in pari delicto, and, therefore, the ordinary rule, that when two parties are engaged in violating the law the law will lease them where it finds them, and will not undertake to help either, does not apply.

At a time when the general government was always in the market borrowing money at a largely usurious rate, any party who withheld his money from such safe loan and loaned it to a town was still considered as the oppressor, and the town the oppressed. The oppression is not a matter of fact to be found by the triers of fact, but a mysterious inference of law founded in the policy of the law.

This being so, is the action had been against the estate, or against the executor in his capacity as such, to recover back the money usuriously paid, no notice would have been necessary, excepting such notice and demand as is always required by the statute before commencing an action against an executor. The unlawful act in such case being the unlawful act of the intestate, and of course known to him, the right of action must have accrued in his lifetime, and would not depend upon the executor's knowledge. In such case, the statutory demand must be made before the suit can be maintained. In this case, the estate having been settled in the insolvent course, the claim, not having been presented before the commissioners as appeared by the pleadings, would be barred, and in this state of facts the attempt is made to recover the amount of the executor de bonis propriis.

It being conceded that neither the defendant nor his co-executor had any knowledge of any infirmity in the note, or of any usurious transactions between the testator and the plaintiffs, and the note being prima facie good, and one which the selectmen were authorized to pay, and there being no pretence of any mistake or accident, it seems entirely clear that the defendant has been guilty of no violation of law. He had a right to believe the note to be good, and to treat it as such; he had a right to deal with the selectmen as the agents of the town, authorized to settle their just debts: he had a right to receive this money as money belonging to the estate of his testator, and to use it in the settlement of that estate.

If it had been made to appear that he had been notified of the state of facts on which the claim of the town is founded before he had settled the estate and paid over the money, and had had full knowledge of the usurious transactions complained of, some questions might have arisen which do not now arise. But in the existing state of facts, as made apparent by the case, I think this action cannot be maintained, and a nonsuit was rightly ordered.

The objections taken in the course of trial by the defendant, not being necessary for the determination of the case, have not been considered.

LADD, J., concurred. *Page 356

Concurrence Opinion

This is an action to recover of an executor, personally, usury taken by his testator during his lifetime.

December 10, 1864, Moses Merrill, the testator, lent the town of Ossipee $3,000, and took the note of the town for that sum. February 24, he lent the town $2,000 more, and took a note therefor. Interest was paid upon these notes of Moses Merrill, from time to time, at the rate of 8 per cent. February 17, 1872, these two notes were surrendered by Moses Merrill to the town, and he took a new note of that date for $5,000 signed by the selectmen of the town. The defendant and Lois Merrill were the executor and executrix of the will of Moses Merrill. February 13, 1873, the town treasurer, by authority of the selectmen of Ossipee paid to Lois Merrill $2,000, which was endorsed upon the note, dated February 17, 1872. Sept. 22, 1873, the treasurer paid the balance of said note, amounting to $3,424.10, to the defendant. The money was paid to him as executor of Merrill, "and without any knowledge of part of any infirmity by reason of usury."

It was not claimed by the plaintiffs that they had paid to the defendant, or to the executrix, Lois Merrill, any money as usury, or any other money than the sums of $2,000 and $3,424.10.

It was claimed by the defendant, and not denied, that he had accounted for the full sum he received in settlement of his account.

It is plain that the defendant has done nothing more than his duty. There comes into his hands, as executor, a note signed by the selectmen of Ossipee. He collected it. There was no usury in it, and he was not aware that any usurious interest had ever been paid on the notes, which went into the consideration of it. To hold that he made himself personally liable in any way would be a conclusion which the court would reach with reluctance, and only in obedience to some rigid principle of law.

It is said that these payments of usurious interest are payments upon the note, and should have been endorsed upon the note. Suppose they might be regarded in that light: it is clear that they might also be regarded as payments of money distinct from the note, to recover which the town would have an action against Moses Merrill, or his estate; — and, if the note and the payments of usurious interest might be offset against each other, can there be any doubt that, after the town had seen fit to pay the note in full, its action would be one to recover back the sums of usurious interest paid to Moses Merrill, and not an action to recover back any portion of a valid note paid to his executor? Clark v. Phelps, 6 Met. 296; Butterfield v. Kidder, 8 Pick. 512; Gardner v. Flagg, 8 Mass. 101; Thompson v. Woodbridge, 8 Mass. 256; Chadbourn v. Watts, 10 Mass. 121; Little v. White,8 N.H. 276.

Judgment affirmed. *Page 357