OLDS v. CURLETTE

OLDS v. CURLETTE. (Circuit Court, S. D. New York. December 1, 1905.) Courts- — State Laws as Rui.es of Decision in Federal Courts — Usury— Conditions Precedent to Suit i^or Cancellation of Mortgage. A complainant may maintain a suit in equity in a federal court for the cancellation of an alleged usurious mortgage without averring an offer to pay the money borrowed with legal interest, where the right to such relief is given by the state statute. [Ed. Note.- — State laws as rules of decision in federal courts, see note to Wilson v. Perrin, 11 O. O. A. 71; Hill v. Hite, 29 O. C. A. 553.] In Equity. On demurrer to bill. F. M. Olds, for complainant. T. F. Buck, for defendant. [MAJORITY — WALLACE, Circuit Judge.] WALLACE, Circuit Judge. At the conclusion of the argument of this case in overruling the plea decision was reserved upon the demurrer to the bill for the purpose of considering the single question whether the complainant could ask relief in equity for the cancellation of an alleged usurious mortgage without averring an offer to pay the money loaned with legal interest. IC the suit had been brought in the state court, the complainant would undoubtedly have been entitled to the relief, because the state usury laws expressly so provide for it notwithstanding a borrower has not paid and did not offer to pay the amount. The federal courts when sitting in equity administer the principles of equity jurisprudence as they prevail in these courts without regard to any state legislation as to the remedy. But the case of Missouri, etc., Trust Co. v. Krumseig, 172 U. S. 351, 19 Sup. Ct. 179, 13 L. Ed. 474, is a decision expressly in point in favor of the complainant. The demurrer is accordingly overruled, with costs, but with leave to the defendant to answer.