The inhabitants of the town of Reading against The inhabitants of the town of Weston

The inhabitants of the town of Reading against The inhabitants of the town of Weston. An absolute deed of land, given to secure the repayment of money loaned on usurious interest, may, as between the parties to such deed, be avoided, by parol proof of the usury. But no person other than the oppressed party to a usurious contract, can avoid such contract, on the ground of usury. A new trial having been granted, pursuant to the determina-^on 0f ⅛⅛ Court, ante 143, 149., the cause was tried again, at Danbury, September term, 1828, before Peters, J. On this trial, as on the former, the case turned on the settlement of Lucy Darling. The absolute deed from Joseph Burr to her, dated the 19th of March, 1808, of a tract of land in Reading, of the value of 800 dollars, and the writing which she immediately gave back to him, as stated in the case made on the former trial, appeared in evidence. It appeared, also, that she immediately removed into the town of Reading, and there occupied a part of the estate so conveyed to her, and Burr the other part, for the term of five years. The plaintiffs claimed and offered testimony to prove, 1st, that the part of the estate possessed by Lucy Darling, was of less value than 100 dollars ; 2ndly, that she occupied as tenant of Burr, and not in her own right; 3rdly, that at the time of executing said deed and writing, it was usuriously and corruptly agreed, by the parties to those instruments, that she should loan to him the sum of 800 dollars, for the term of three years, and that he should repay it within that term, with lawful interest, and that, in addition to such interest, he should give her, for such loan and forbearance, the use of that part of the estate occupied by her, and keep i:er cow; and that to secure the fulfilment of such usurious and corrupt agreement, and for no other consideration, Burr executed and delivered the deed. To the admission of this testimony the dercndants objected, on these grounds: 1st, because the deed was absolute ; and 2dly, because the agreement could not be proved between the present parties. The judge admitted the testimony offered, and instructed the jury, that if such corrupt agreement was made, and the deed was given in fulfilment of it, they ought to return a verdict for the plaintiffs. The jury found for the plaintiffs; and the defendants moved for a new trial. JV. Smith and Swift, in support of the motion, contended, I. That parol evidence is inadmissible, to shew, that an absolute deed k a mortgage. This results, first, from the principles of the eoraimon law. The contract being reduced to writing, the writing will be considered as embracing the whole contract; and it cannot be enlarged or varied by parol. This is not a case of mistake. There was no deviation from the intention of the parties. Secondly, the subject of the deed being an interest in land, a parol agreement concerning it is void by the statute of frauds and perjuries. 2. That this being an absolute deed, proof of usury was inadmissible to invalidate it. The rules of evidence are not altered, by the statute against usury. To make out usury in this case, you must prove a loan of money — and that it is secured by this deed. To do this, you must after the nature of the instrument ; you must convert one contract into another. You might as well change a deed into a lease, or a will, or a power of attorney. Flint v. Sheldon, 13 Mass. Rep. 443. In all cases of illegal considerations, you prove the illegality, and destroy the contract as it is, and not change it into a different one for this purpose. 3. That these parties cannot avail themselves of the usury, not being parties or privies to the contract. Green v. Kemp, 13 Mass. Rep. 515. Bearce v. Barstow, 9 Mass. Rep. 45. 48, Bridge & al, v. Hubbard, 15 Mass. Rep. 96, 103. Whelpdale's case, 5 Rep. 117. Bac. Abr. tit. Usury. E. Bull. N. P. 224. The party to the security must come in, and avoid it, by plea j otherwise no advantage can be taken of the usury. Sherman and Booth, contra, insisted, 1. That parol testimony, notwithstanding the form of the deed, was admissible, to shew, that the land was conveyed to Lucy Darling, on a usurious consideration, and to secure a usurious loan. The opinion of the court given by Jackson, J. in Flint v. Sheldon, 13 Mass. Rep. 443. they denied to be law ; and relied upon the decision of the Supreme Court of Errors of this state, in Mitchell v. Preston, 5 Day 100, Admitting explicitly, that a usurious contract is voidable1 only, at the pleasure of the borrower, and not void ; and that strangers to the contract cannot avoid it ; they insisted, that an estate voidable at the will of the party creating it, is not such “ a right in the fee of a real estate” as is contemplated by the statute. Stat. 280. tit. 51. s. 3. The object of the act was, to make the persons inhabitants of towns, who had the means of support, and would not, therefore, be likely to become chargeable. If A. should convey to B. in fee an estate of competent value, but should reserve to himself a right of entry, at any time within a given period, to avoid the estate ; B.', although a tenant in fee, would not have such an estate in fh* land as would confer a settlement under the statute, as his sup-p0rt; so far as ⅛ depended on the land, would be at the will of the grantor. In that case no stranger could take advantage of the right of entry; it would not be void, but voidable only ; nevertheless, as it would not give a settlement, the town might shew the reservation. The deed in question, being usurious, conveys a title equity frail. The grantor maY avoid the estate at pleasure. Th¡ tu ⅛ of Lacy Darling, depending on his will, is not such aright as m a*-.v manner satisfies the intent of the legislature. She has, by virt.u'? no suPPort> which Burr may not, at any time, deprive J161*- ^ *his s0> the plaintiffs may prove the usury, not for the pui avoiding the deed, but to shew, that her estate was not of such a character as to give her a settlement in the town of Reaa\PS- The counsel for the defendants, in reply, commented minute'ly On the case of Mitchell v. Preston. In that case, they observed, the court admit, that a contract, to be usurious, must be such as could be enforced aside from the statute against usury. They also insisted, that it must be such as could be enforced in the same form ; — not such as might be enforced, when changed into a different form. It would not then be the same contract. Now, how could the contract in question be enforced, laying usury out of the case ? Not as a mortgage ; for you cannot have a parol mortgage. The borrower can do nothing to resist this deed or any claim under it. By this decision, you must first prove a contract capable of being enforced ; and then you may prevent its being enforced, by proof of usury. It is a security, the court say, because the land is of more value than the money paid : the grantee has got the usurious interest already. Admit that he has ; the excess only can be recovered back. [MAJORITY — Hosmer, Ch. J.] Hosmer, Ch. J. The first objection made assumes the broad ground, that as between the parties to the deed, usury is an inadmissible plea, because the deed is absolute. Considering it as absolute, (whether it be so or not) I am of opinion, that the testimony was admissible as between the’parties ito the deed, notwithstanding the determination in Flint v. Sheldon, 13 Mass. Rep. 443. in a neighbouring state, to which I cannot subscribe. The words of the statute prohibiting usury are very broad. The law invalidates not only “ all bonds and contracts” made for the payment of usury, but “ all mortgages and assurances.” An absolute deed is both a contract and an assurance ; (2 Bla. Comm. 294.) and therefore, is within the letter of the law. That it is within the object of it, is equally unquestionable-The act was made to prevent usurious oppression in every case, regardless of the face or form of a transaction, with whatever garb it may be clothed, and whatever device it may assume. Lowe v. Waller, Doug. 736. Jestons v. Brooke, Cowp. 793. 796, Massa v. Dauling, 2 Stra. 1243. Tate v. Wellings, 3 Term Rep. 521, 538. Rich v. Topping, 1 Esp. Rep. 176. Atkinson v. Scott, 1 Bay 303. Carter q. t. v. Brand, 1 Cam. & Nor. 28. 5 Rep. 69 b. Many evasions of the statute have been attempted ; but the courts have uniformly supported its spirit, by stripping off every disguise, however plausible or specious, and unveiling the corrupt transaction. Absolute conveyances, both of land and personal property, have been invalidated on proof of usury. Bro. tit. Usury, pl. 1 Carter and Claycole’s case, 1 Leon. 307. Peterson’s case, Cro. Eliz. 104. Doe d. Davidson v. Barnard, 1 Esp. Rep. 11. And in v Preston, 5 Day 100. it was determined by this Court, that an absolute deed of land, made to secure an usurious loan, was void. As between the parties, then, the tes,.. 3 be admissible ; but the plaintiffs, in this case, w* re n0t a Partl • This raises the question, whether those who are no. ‘ p 3 to an usurious transaction, may be admitted to invalidáis' a deed, for the usury, with which such persons have not been, and could not be, oppressed. It has been long and uniformly established law, that one not a party to an usurious contract, may not, for this cause, invalidate it. Whelpdale’s case, 5 Rep. 119. Bull. N. P. 224. Carter and Claycole’s case, 1 Leon. 307. Ord on Usury 105. 110. Bearce v. Barstow, 9 Mass. Rep. 45. Green v. Kemp 15 Mass. Rep. 515. The reason is extremely obvious. The’ law of usury was made to prevent oppression, and to rescue the party oppressed ; but it never was intended for the benefit of those, who are not, and cannot be, injured, by an usurious transaction. It falls within that class of statutes, in which, although a contract is declared to be utterly void, it is voidable only, at the election of the oppressed party. Lincoln College case, 3 Rep. 58. Whelpdale’s case, 5 Rep. 119. To actions of this sort applies the maxim, Quisquís potest renunciare juri ^r° ge in{r0c¿lic(0- In cases of small oppression, an individual, influenced by a principle of justice, or a nice sense of honour, may wa've the benefit of avoiding an usurious contract, as being utterly disproportioned to the meditated wrong. Why should he not be permitted to do it ? And on what good reason may a stranger to an usurious agreement be suffered to do what the party in interest may consider as incompatible with, honour and integrity ? I think it extremely clear, that the evidence offered was inadmissible in behalf of the plaintiff s ; end for this cause, that a new trial ought to be advised, The other Judges were of the same opinion, except Dag-gett, J., who gave no opinion, having been of counsel in the cause. New trial to be granted.