McDaniels v. Barnum

Williams, Chancellor, delivered the opinion ofthe Court. This is a bill brought by the complainant, to foreclose the equity of redemption- in certain mortgaged premises-. The bill charges, that the defendant, on the 4th November, 1828, executed the mortgage in question, to one Joseph-Rogers, to secure the payment of certain notes executed by the defendant to Rogers, of that date, one for five thousand dollars, payable in five years from the first of May, 1829, one for four hundred and fifty dollars, payable on the first of May, 1830, and four of three hundred dollars each, payable on the first day of May, in the years 1831, ’2, ’3 and ’4, at the bank of Vergennes. And that Rogers, for a valuable consideration, sold and assigned' the notes to the complainant. The bill further charges, that the premises mortgaged wrere subject to the incumbrance of two prior mortgages — one to Moses Catlin, wdiick had been291 assigned to George Field, on which a decree of foreclosure bad been obtained — the other given directly to the said Field, on which a decree of foreclosure had likewise been obtained ; — that the complainant had been compelled to pay the amount of the mortgages last mentioned, amounting to $2404 02. The defendant, -by his answer, admits the giving the notes and mortgage to Rogers, but says, he employed Rogers as his agent to obtain money for him; that he executed •the the notes and mortgage to enable Rogers to obtain the -money and to assign the same as security therefor; that -Rogers assigned the notes and mortgage to the complainant for money advanced by the complainant to Rogers; -that the complainant knew that Rogers, in negotiating for said loan of money, and assigning the securities, acted as the agent of the defendant; that the contract between Rogers and the complainant was usurious and void — the complainant having reserved out of the loan one thousand and -sixty dollars, and paid to Rogers three thousand nine hundred and forty dollars, and no more. To prove this defence, the defendant relies on the testimony of Joseph Rogers, who says very explicitly, that he was employed by the defendant to raise the money; that the notes and mortgage were executed to him by Barnura •to enable him to obtain money thereon; that he acted .solely as the agent of the defendant; that he so declared to the complainant when he first made application to him; that in all his conversations with the complainant, he avowed himself as the agent of the defendant; that he had no interest at all in the money obtained, and that the sum stated in the answer was all he received of the complainant. Indeed he testifies directly to the fact of usury. There appears to have been a great irregularity in taking the testimony in this case, and a palpable violation of the -rules which govern proceedings in this Court. No interrogatories were settled ; but the witness came before the master with a prepared deposition, and the counsel for the parties examined and re-examined him, as they would a witness who testified, viva voce, in Court. The defendant does not object to the plaintiff’s taking a .decree for the amonnt he paid to redeem the mortgage of Field ; but the mortgage executed to Rogers and assigned — 292 — to the complainant, he insists is void as being an .usurious .transaction. The statute declares that all contracts and assurances whatever, on which more than lawful interest is reserved, .taken or secured, or agreed to be reserved ®r taken, shall he utterly void. .There can be no doubt, therefore, that where full and sufficient proof can be made of the fact, that .usury avoids a ^contract' in equity as well as .at law. In the exposition of this statute, as of all others, courts of equity adopt the same rules as courts of law ; y.e.t, i t has been said by án eminent Chancellor, “ it does often vary in the remedies given, and in the manner of applying them.” Equity never relieves against an usurious security, on the application of the person who executed it, except upon the terms of his paying what is really bona fide, due thereon, with legal interest.—Scott vs. Nesbit, 2 Br. C. C. 641.—9 Ves. 84.—16 Ves. 124. The rules of the Court in relation to practice, aré never dispensed with, to enable a defendant to defend on .the ground of usury, except on his consenting to a decree for the amount actually received with the interest. It has been said! with great propriety, by a writer on this subject, in a treatise on equity, that the Court, in many cases have a discretion,.whether it will interfere or not,' and may therefore prescribe the terms of its interference ; yet it will never exercise this discretion in favor of a plaintiff who is a wrong-doer, seeking to render a court of equity the means of effectuating the wrong.”— Fonblanque, 1 Vol. p. 22. The sum of money advanced, together with the legal interest, ought in'justice to be repaid by the borrower, although the contract dr security may be declared void by a statute founded wholly on principles of public policy. If there is any moral guilt in making ah usurious contract, b.oth parties aré equally guilty, though it may be extenuated on éithér side by the particular circumstances attending the transáction. ' The remedy afforded by the statute must be given, upon principles ap-‘ plicable to all similar cases without regard to the character of the parties, the exorbitancy of the sum agreed to be given as interest, or the circumstances which may appear either in extenuation or aggravation. Any sum knowingly .and designedly reserved in a contract above the legal inte.- — 293 — rest, though ever so small, if in violation of the provisions of the statute, renders the contract void ; and it is no more than void if the sum is ever so large. When usury is set up as a defence in a court,of equity, and the object of a party is to avoid a contract entirely, and appropriate to his own use the money of another, and avoid the payment by force of the statute, it must be fully and substantially proved ; and the evidence to prove it, is not aided by the answer of a defendant unless he is particularly called on, to disclose in the bill. The gratuitous answer of the defendant in this case, does not make his declarations .evidence; but is to be regarded as only equivalent to a plea of the statute of usury. This evidence should come from legal, competent and credible witnesses, or at least from the testimony of one unimpeached witness, who testifies under such circumstances that full credit is to be given to his testimony. It is not sufficient barely to raise a conjecture, or a probability merely that the facts may be as contended fo,r. A witness may s.wear to a fact, whose general character is unimpeached, and yet the nature of his testimony may be such, or the other circumstances detailed in evidence may be s.uch, as to lead to a doubt whether his testimony is entitled to credit, and makes it improper to proceed on his evidence alone. Courts of justice have felt themselves compelled to receive testimony even from witnesses whose general character was unimpeached, upon which they could not recommend to a jury to find a verdict. It was declared by the Court in Virginia, that the testimony of a witness, tending to fix a fraud upon himself, ought not to be regarded. Claiborne vs. Parish, 2 Wash. Rep. 148. In relation to witnesses who have attested wills, and were afterwards called on ,to impeach .their .execution, Lord Mansfield often said, he would hear those witnesses, but would give .no credit to them ; and in this he was followed by Lord Kenyon. It will be readily acknowledged by every one, that the testimony of a witness who comes to cut down and destroy a security for money which he has either passed himself or aided others in passing, should be received with jealousy, and examined with great caution. The witness, upon whose testimony alone .the defendant — 294 — telies, ^ Joseph Rogers, .the man to whom the defendant executed the notes and mortgage in question, and who assigned the same to the plaintiff. No other witness has been examined by the defendant. The complainant contends, that upon this testimony alone, taken under the circumstances disclosed in the deposition, compared with the testimony of the other witnesses,taking into consideration •the part which he has acted in this business, and the nature of the facts to which he testifies, the Court would not be warranted in declaring this mortgage and these notes void. In the first place, he appears, according to his own relation, as the friend and agent of the defendant, who received these notes and mortgage for the purpose of obtaining money for him ; and there can be no doubt, that it was originally contemplated that he should raise the money at •more than six per cent, interest. The giving the first interest note for four hundred and fifty dollars, shows most .conclusively, that this was understood by both of them. — - Now, if it can be supposed, as was urged in the argument, that it was originally designed and contrived between the defendant and witness, that the money should be obtained by stipulating to give more than legal interest, and this inducement was to be held out by the witness to his friends, to whom he was about to apply for the loan of the money, and at the same time, they intended to avoid the payment by force of the statute, it would very much detract from the character of the witness as a man of integrity, if it did not affect his credibility. The evidence, though it may lead to suspicions that such was the intention, may not warrant the inference directly that such was the fact. If the witness in this transaction acted merely as the agent of the defendant, there was no necessity for any backwardness or reluctance in declaring all the circumsances, with which he was acquainted; and towards the plaintiff at least, from whom he obtained the money, and who was to lose entirely, the sum of about four thousand dollars, he should have shown the utmost frankness. It appears by his testimony, that, although he very readily drew off and and showed to the defendant, minutes of what he would testify to, and when he was written to by Mr. Waller, one — 295 — of the counsel for the complainants, requesting an interview, he first called on the defendant to enquire whether Mr. Waller was the attorney for the plaintiff, and whether he thought he wanted to see him on this business, yet there was not the same readiness to commnnicate to the complainant or his counsel. On being interrogated whether he did not decline to talk with the counsel of the- complainant, and state as a reason therefor that he thought it improper to talk with the opposite party, he answers, “ I think it likely I stated some such thing, being a little wary, not knowing what the object might be.” Surely, there was no need of this wariness towards the complainant, who applied to the witness to assist him in making the settlement in relation to the lands mortgaged to Field, and employed him as agent for the complainant, delivered him the money to redeem the mortgage to Field, more especially as the witness says, “ that he supposed the whole business was then settled — that the defendant did wrong in not closing with the complainant as he agreed, before the payment of the money,” and had, as the witness says, “ in that rather overreached” the complainant. These circumstances certainly throw a shade on the fairness, if not the integrity, of the witness. Again, there is an evident contradiction between the testimony of this witness, and the testimony of Thomas McDaniels, the son of the plaintiff- Rogers represents that he first presented himself to the complainant as the agent of the defendant, and to hire money for him; and repeats it several times: he says, that in all' his conversations and negotiations with the plaintiff, he declared that he had no interest in the business — that he was agent for the defendant — that he did not know that defendant would ratify the bargain, or “ bear him out,” as the witness expressed it — that he intended to be understood that he wanted to get, hire, or loan the money for Amos W. Barnum. Thomas McDaniels testifies that he was present at the time Rogers applied to his father for the money — that Rogers then said he wanted' to sell the notes and mortgage — that he had got to raise some money; and when the plaintiff declined to buy the notes, and proposed to have Rogers procuro certain persons named to sign a note with him, as — 296 — hé Should préfer to advance the money on their notes rath-’ er than on the note against Barnum- — that Rogers then re-' plied, that he did riot' know á:s he could procure those persons to sign a note, arid preferred to have the plaintif buy the rioíes and mortgage. He further testifies, that at a' subsequent time, Rogers’ again applied to the plaintiff to' buy the notes; and offered to sell thern at á discount, declaring that it: would riot be considered' as usury. This witness further says, that' he examined the notes and mortgage with his father, arid he did' not understand that the irioney vVas wanted for any other person but for Rogers himself.— This testimony is utterly inconsistent with the statement of Rogers, that he so repeatedly-fepfesetlted' himself as the agent of the deféndant, and-' in that character alone, wanted to obtain for him a l’oaif of riibnfey from the' plaintiff.— The representations of both of these'’ witnesses otí this' subject, can'not be correct, nor can they be reconciled on the principle of positive and negative testiriibny. In; corroboration of the testimony of Thomas'McDaniels, is" the receipt executed by Roger's on the 25th November, 1828,'in which' he’ acknowledges the receipt of “ the noté which the said James ha's' paid me for this day” — thus recognizing á sale, ás stated'by Thomas McDaniels. There is ariothef circumstátícé, which appéárV from the' testimony of Rogers, which casts sriCh an imputation on' it, as should induce us to pariSe at least before we pronounce a decree on his testimony alone. The witness1 came before the mhster as I havé already said, with'á prepared deposition. On being interrogated whether the paper then produced1, as the sübstaricé of his testimony, was' copied from any other' paper, he answered; that he made' rough minutes of his testimony, and then drew it off correctly on the paper produced. To another question he answers, that the paper produced, contains' a third more than the former one. His first sketch, he says, Ire showed to the defendant. He is then inquired of, whether he ever had in his possession any thing written by the defendant or an‘y other person; to which lie answers in the following words : “ General Barnum wrote dewn some sketches to know if I would testify so and so — stating what he #anted me to testify to : a part of my testimony now is copied from — 297 — what he wrote down.” This paper, the witness says, he thinks he destroyed after he made out his testimony.— The last time he saw it, was at his own home. The paper which the Witness produced as the substance of his deposition¿ and which must of course have been copied from the pápef giveii him by defendant, he says, in answer to the 21st interrogatory, he showed to the defendant some months before, When he wanted to know what he (Rogers) Would testify to. He further says that he has not beeii able to find the paper handed to him by defendant, and from which part of his testimony is copied, which strengthens the inference Which the witness has drawn, that it was destroyed. What part of this statement or sketch, written by the defendant, is copied into his deposition, the witness does not specify: perhaps he does not recollect. It may have been the most material part of his testimony. He furnishes no means by which We can separate it from the other. And though the witness says, and probably thinks, that he was not guided in making otit the statement of his testimony, by the paper handed him by the defendant, and that it had no effect on his testimony; yet it may have had an influence which he cannot recognize. We know the danger to be apprehended from testimony created by a party in this way. By stating facts to a witness — by giving him a written statement which is afterwards destroyed, it has been the case, that a witness has thought be recoil lected facts which had no existence. Indeed, it would always be difficult for a witness to distinguish between facts of which he had a distinct knowledge at the time of the transaction, and those which he acquired from the statement or writing obtained from the party who made them. Without imputing any such intention to create testimony in this case, it is apparent that this Circumstance throws a Very great discredit on the deposition of this witness. — * There can be no doubt that this deposition would have been suppressed for this cause, if a motion had been made therefor. At law, a deposition drawn ep by an agent, attorney, or party interested, is to be rejected altogether. — > In chancery, a deposition was suppressed because the attorney for the plnintiff had written it down in the exact — 298 — ^orm ‘n which it was'taken, though it appeared that the witness had told him the facts and circumstances mentioned —Ambler, 252. If a deposition of this character is t0 rejecte(^ entirely as improper to be read, and because it is of dangerous tendency to admit a party to impose his own statements as evidence, it is surely improper to claim for such a deposition the credit due to the statement of a witness who testifies in the ordinary manner, without any prompting or direction by the person in interest. It is further to be remarked in this case, that the notes and mortgage were executed by the defendant to the witnes.s, Rogers; and that Rogers has, by his deed under his hand and seal, transferred and assigned the mortgage, together with the notes, to the complainant. His testimony is now introduced to avoid them: and although the Court did not consider this as coming within the rule in the case of Walton vs. Shelly, or if it did, were not inclined, on that ground, to reject the testimony altogether, yet we do say, that although we should not be disposed to go to the extent which Lord Mansfield and Lord Kenyon áre said to have expressed their determination to do, in the case of witnesses who impeach the execution of a will attested by them, yet we can with propriety adopt the language of Lord Eldon, and say that such “ testimony is to be received with all the “ jealousy, necessarily fpr the safety of mankind, attaching “ to a man, who, upon his oath, asserts that to be false, whiph he, has, by his solemn act, attested to be true.”— Howard vs. Braithwaite, 1 Ves. & Bea. 202. • From a vie w of the whole case, considering the situation of the witness, Rogers — the part which he states he took in this transaction — His connexion with the defendant — his wariness, and want of frankness towards the complainant— the irreconcilable difference bejtween his testimony and that of Thomas McDaniels — the manner in which his deposition was prepared — his copying a part, which may have been all that was material, from a paper given him by the defendant — rhis not being able to state what has become of that paper, and not distinguishing what was copied from that paper, from the other part of his testimony -; — considering, also, that he comes to avoid by his testimony, a se299 purity which he has passed as a valid security, and which he first offered to sell to the plaintiff, we consider that we should be unjust to the parties, and unfaithful to ourselves as Chancellors, to pronounce a decree vacating this mortgage and these notes, and thus enable the defendant to take this sum of money from the complainant without any remuneration therefor, on the solitary deposition of this witness, Unsupported by any other. Arid if we are to be guided by legal testimony, and not indulge in conjecturé: — if we are to derive our information from a source unpolluted and wholly deserving of credit, we cannot say that the facts sét forth in this answer, are proved by competent and credible testimony. Bates, Waller and Royce, for complainant. jPJielps, Bell, Collamer and Linsley, for defendant. The result is, that the complainant is entitled to a decree ; and it must be referred to a master to ascertain the sum due to him on his mortgage.