Johnson v. Morley

1 Hill & Den. 29

• Court: New York Supreme Court
• Decided: July 1, 1852
• Status: Published

Opinion

By the Court,

Cowbn¡ J.

This note began in fraud and ended in usury. We are referred to Cram v. Hendricks, 7 Wend. 569, and Rapelye v. Anderson, 4 Hill, 472, for its support against the usurious branch of the defence. No case is cited to sustain it against the fraud; and Nellis v. Clark, 4 Hill, 424, condemns it. No ddubt it was good for nothing in its inception by reason of the fraud; and I am at a loss to see how it can be restored by the usury. It - is said to have been sold by Dunbar and purchase'd by Isaac Johnson, the usurer. This was hardly that kind of bona fide purchase which would make it available even as against Morley. (Ramsdell v. Morgan, 16 Wend., 574.) It was void in its inception as between the original parties; money was borrowed on it by the payee at an usurious rate, aftpr adding Easton and Crandall as sureties for the loan. This is the very definition of a note void for usury within the cases which go most strongly to protect usurious dealing.

But, if possible, suppose the note was valid in its inception against Morley. Here are two makers who add their names as sureties in consideration of the vicious loan. As to them it was a new note. True, it runs in the first person, “I promise,” &c., and in this view might be valid as against Morley, being joint and several. But the suit is against all three ; and a recovery can not be had against a less number. The plaintiff sues on the note as a joint one. As to two of the defendants there is no pretence that Dunbar could have sued on the note while in his hands. It could as against them derive no validity except by the loan. That being usurious, the note was clearly null for the purposes of this action.

New trial granted; costs to abide the event.