Morgan v. Schermerhorn

1 Paige Ch. 544, 1829 N.Y. LEXIS 401, 1829 N.Y. Misc. LEXIS 27

• Court: New York Court of Chancery
• Decided: August 4, 1829
• Status: Published

Opinion

The Chancellor :—The objection that the complainant has not brought into court the amount admitted to be due with legal interest, cannot be received in this stage of the cause. As a general rule a party who comes here to seek relief against an usurious contract, must pay or offer to pay the amount actually due, before he will be entitled to an injunction, or to answer as to the alleged usury. But if he answers the bill without mating any objection on that ground, the court will not afterwards dissolve the injunction, if it appears there is usury, and if the defendant is then willing to pay the sum really due. If a party comes here to seek equity, the court will compel him to do equity. In this case the complainant offered to pay the whole amount loaned, with compound interest; and the defendant refused to receive it. Hnder such circumstances, it was not necessary to make a formal tender of the money. The same offer is repeated in the bill, and the court has power to compel him to make it good, whenever the defendant consents to accept of those terms. The actual payment of the money, under such circumstances, was not necessary.

The only question m this cause, therefore, is, whether the defendant is entitled to hold this mortgage for its whole nominal amount. It is alleged in the bill that this land, which was in a measure forced upon the complainant at nearly four and a *half dollars per acre, was not in fact worth one at the time of the sale. • The answer to this is, that the defendant knows nothing of its value, except what is contained in his father’s letter, &c., and he fixed it at a price not exceeding $3 per acre. If the defendant knew, or had reason to believe, he was getting more for bis land than any one would be willing to give him for it unconnected with a loan of money, he was in fact selling it for a price above its actual worth, whatever he might have considered its nominal value. From the answer in this case, no one can doubt that the necessities of the complainant induced him, for the sake of obtaining the loan, to give for this land a sum much beyond what it was actually worth to him. And the defendant, by this device, did in fact obtain more than seven per cent, advantage from the loan of his money. The statute cannot be evaded in •this way; and no device of this kind can be permitted to avail the lender, without in effect repealing the laws against usury. As to the policy of those laws the court have nothing to do. So long as the legislature thinks proper to continue them on the statute book, it is our duty to see them faithfully executed. It might perhaps be beneficial to the borrower, in some cases, if he were permitted to stipulate directly to allow a premium above the legal rate of interest; but some limitation is absolutely necessary to protect the necessitous against their own improvidence, and the cupidity of avarice.

The motion to dissolve the injunction must be denied with costs, unless the defendant consents to receive the money loaned, and legal interest, together with a re-conveyance of the land; and to pay the costs already accrued in this suit. If he consents to those terms, the complainant must pay the amount due and execute the conveyance within sixty days after notice of such acceptance, or the injunction must be dissolved.