author: Kstowltow, J.

text:
    Zonne vs. Wiersom.
    Instructions — Jury. — In the trial of a cause all questions of fact are for the decision of the jury, and it is error for a circuit judge to instruct them absolutely on a question of fact. It is his duty to point out and decide what legal principles are applicable to the case, and. of the jury to pass upon the facts.
    (3 Chand., 240.)
    ERROR to the Circuit Court for Sheboygan County.

      Wiersom brought an action of assumpsit against Zonne, alleging that the defendant claimed to be the- owner of a certain tract of land, with the crops thereon, which the plaintiff purchased of him for $350 ; that the defendant at the time aforesaid was not the owner thereof, but that the title thereto was vested in the United States, and the”declaration also contained the common money counts. The defendant pleaded the general issue, with notice of special matter, and at the trial the plaintiff proved that the land in question was saline land, belonging to the United States, and reserved from sale for that cause. It appeared that one Jansen had lived on the land and cultivated a part of it, and that he told the defendant that he left his interest for him.
    Evidence was given tending to prove that said lands were entered December 9, 1848, by Francis Grootiers, and that he conveyed the same to defendant by warranty deed January 6, 1849. The circuit judge charged the jury that the matters given in evidence by the defendant were not sufficient to bar the plaintiff of his action; that the lands mentioned in the declaration were reserved, for saline until after the sale by the defendant to the plaintiff, and that no entry could be made upon them for settlement; that Jansen, being a mere trespasser, could establish no property in the improvements or crops on them ; that even if Jansen had property in the improvements, it could only be transferred to the defendant by a sale or surrender, and a subsequent possession by him ; that if the jury found that there was fraud, imposition or deceit attempted by the defendant and carried out in the sale, then the action could be maintained; and that to make out a case of fraud, it is only necessary to show an unfair advantage taken of the ignorance of the plaintiff with an intent to defraud ; that excess of price, the character and position of the parties and the means of knowledge on the part of the plaintiff were to be considered in making out a case of fraud. The plaintiff had a verdict and judgment, and the defendant sued out this writ of error.

      Abbott & Clark, for plaintiff in error.

      H. 8. Orton, for defendant in error.
   Kstowltow, J.

This was an action of assumpsit, brought by the defendant in error against the plaintiff in error in the circuit court .of Sheboygan county. The defendant below pleaded the general issue and gave notice of special matter in defense. Upon the issue joined, the cause was tried, and the jury, under the instructions of the court, found a verdict for the plaintiff, the defendant in ei’ror, upon which judgment was rendered. The defendant sued out his writ of error, and now seeks a reversal of the judgment given.

Many errors are assigned, a few of which will be considered. There appears to be no question that the court, in the instructions given, charged the jury upon the points of law legitimately arising upon the facts evolved upon the trial. This is said upon the hypothesis that a person may waive a tort and sue in assumpsit; although the court are by no means disposed to hold, that in this particular case, as here presented, such waiver would enable the plaintiff below to maintain this action in the form adopted, though it.were admitted that the defendant committed a fraud upon the plaintiff in the original transaction between the parties.

It appears from the bill of exceptions that the court charged the jury — 1. That the lands mentioned in the declaration were reserved by the United States for salines until after the sale by the defendant to the plaintiff, and that no entry could be made upon them for settlement. 2. “ That Jansen, being a mere trespasser, could establish no property in the improvements upon those lands, or the crops thereon.”

In the instruction first given, as above, it is obvious that it was a question of fact, whether or not the lands “ mentioned in the declaration were reserved by the United States for salines, until after the sale by the defendant to the plaintiff.” This was not a matter of which the court could take judicial notice. The judge must have been convinced of the fact by the evidence adduced. That conclusion was probably, from the testimony, well based. How that may be is, however, quite immaterial, because if it were correct, the court erred in deciding the question. It not being a question of law, but of fact, the point should have been decided by the jnry, and not by the court. The rule of law is clearly established in civil cases, that the court must decide the law and the jury the facts.

In the second instruction quoted above, the same error exists. Here the court, in its language, speaks to the jury as though it were admitted by the parties that the defendant was a trespasser. The language is, “that Jansen, being a mere trespasser, could establish no property in the property in controversy.” Whether Jansen was or was not a trespasser was a question of fact to be proved, and, when proved, to be found by the jury; and the court erred in assuming that he was a wrong doer. The court should have told the jury what in law would be a trespass, and then to find from the evidence whether the individual was or was not a trespasser within the rule of law laid down. From the views expressed, it is obvious that the judgment is erroneous, and that it should be reversed, a venire de novo awarded, and a new Jrial had.

Judgment reversed.


source: Caselaw Access Project

author: Wi-iiton, J.

license: Public Domain

text:
    Mann vs. Stowell.
    1. Rescission on Contract — Fraud. — When a person has been induced. to part with his property by means of a fraud practiced upon him, under color of a contract, he may rescind the contract, return, or offer to return, what he received for his property within a reasonable time, and bring an action of general indebitatus assumpsit to recover the value of the property obtained from him by means of the fraud.
    2. Same. — Where M. purchased of S. a wagon for which he gave in payment the note of a third party, falsely representing that he was solvent; in an action by S. to recover against M. the value of the wagon to which M. set up payment, by means of such note: Held, that evidence to show the fraud practiced on S. might be received in answer to such claim, and that he need not resort to his action on the case for the deceit.
    (3 Chand., 243.)
    ERROR to the Circuit Court lor Dane County.
    Action of. assumpsit brought by Stowell against Mann for the value of a wagon. The defendant pleaded the general issue, and under this plea, gave evidence to prove that the wagon was paid for at the time of the purchase by delivering to the plaintiff the note of one Langley. To this pi'oof against the defendant’s objection, the plaintiff was allowed to reply by proof to show that Langley, the maker of the note, at the time of the sale of the wagon and delivery of the note in payment, was represented by Mann to be solvent, whereas, he was then insolvent.
    The circuit judge charged the jury that if there were misrepresentation and deceit used by the defendant to induce the plaintiff to take the note, then the transaction was void for fraud, and the plaintiff had a right to return the note and bring suit for the value of the property ; if the plaintiff took the note as security merely and not as payment, and the maker of the note was found insolvent, or the note proved uncollectable, the plaintiff might sue for and recover the price or value of the wagon; that if Mann induced Stowell to take the note by misrepresentation and deceit, that is, if Mann made false representations in regard to Langley’s ability to pay, knowing them to be false, or when he did not know anything about it, in such case, there was fraud which vitiated the contract under which Stowell took the note, and Stowell might properly sue for the value of the wagon ; that in order to make out his case, he must show that there was fraud practiced by the defendant which avoided the contract, and by reason of which the plaintiff declared it rescinded, and he must show that he had within a reasonable time returned or offered to return the note to the defendant. If there was no fraud, the plaintiff, to recover, must show that the note was received as security only and not as absolute payment, and that Langley was insolvent or did not pay. In such case it would be enough to bring the note into court and show that he had not collected and could not collect it, and was ready to deliver it up; that if there was no fraud used and the note was not taken as security, but as payment for the wagon, then the plaintiff could not recover. The plaintiff had a verdict and judgment, and the defendant brought error.

      Botkin & Knapp, for plaintiff in error:
    I. The court erred in allowing evidence tending to show misrepresentation and deceit as to the solvency of Langley, the maker of the note, and in charging the jury that if fraud was proved, the plaintiff could recover; they contended that his remedy in such case was only by a special action on the case, and cited Chandler v. Lopus, Cro. Jac., 2; 1 Smith’s Lead. Cases, 78, and notes; Seixas v. Wood, 2 Caines, 48 ; Holden v. Bakin, 4 Johns., 421; Sweet v. Colgate, 20 id., 196; Conner v. Henderson, 15 Mass., 820; Paisley v. Freeman, 3 Term, 320; Upson v. Vail, 6 Johns., 181; Allen v. Abington, 11 Wend., 375 ; 1 Chitty Plead., 107; 7 Cranch, 69; 17 Mass., 182; Med-bury v. Watson, 6 Met., 247; 6 N. H., 99, and many other cases.

      J. T. Clark, for defendant in error,
    cited 2 Kent Com., 482 ; 1 Cow Treat., 252 ; 1 Cow., 359 ; 15 Johns., 475; 9 id., 310 ; 15 id., 247; 6 id., 110; Chitty on Bills, 268; 8 Wend., 535; 15 Mass., 79; 2 Denio, 136 ; 2 Phil. Ev., 199; 6 Term, 52; 6 Mass., 182 ; 9 Cow., 23; Chitty on Bills, 200; 4 Mass., 488; 8 Cow., 77; 7 Term, 60.
   Wi-iiton, J.

In this case the declaration was in general in-debitatus assumpsit, for goods sold, and for money had and received. At the trial, as appears by the bill of exceptions, Stowell, the plaintiff below, introduced testimony tending to show that he sold to Mann, the defendant below, a wagon in exchange for a note for the sum of one hundred dollars, signed by one "William Langley; that Mann, at the time when the exchange was made, knowingly made false representations to the plaintiff, in respect to the ability of Langley to pay the note; that Langley was in fact insolvent, and the note not collectable. The plaintiff also introduced testimony tending to show that he offered the note to the defendant about the time it fell due, and that the defendant refused to receive it.

The judge before whom the cause was tried, instructed the jury, in substance, that if there was misrepresentation and deceit used by the defendant, to induce the plaintiff to take the note, then the transaction was void for fraud, and the plaintiff had a right to return the note at any time, and bring a suit for the value of the property; that the plaintiff, in order to make out his case, must show, 1. That there was a fraud practiced by the defendant, which avoided the contract, by reason of which he could declare it rescinded, and then, 2. Must show that he had returned, or offered to return the note within a reasonable time; or, 3. In case there was no fraud, the plaintiff must make out that the note was received as security only, and not as an absolute payment; and consequently, that if Langley was insolvent, or did not pay, he might come on the defendant for the valúe of the carriage. In such case, it would be sufficient to bring the note into court, and show that he could not collect it, and was ready to deliver it up on the trial. The plaintiff in error insists that the testimony does not tend to establish a case for the plaintiff under the declaration, but that, to enable him to recover, he should have declared specially, setting out the deceit and misrepresentation of the defendant, in regard to the ability of Langley to pay the note; also that the judge erred in admitting testimony showing the condition of Langley as to property in the spring of 1848; and also, that the judge erred in charging the jury that the plaintiff had the right (in case the contract was void for fraud) to return the note at any time, and bring a suit for the value of the property.

The cases bearing upon the main question in the case before us are not all consistent with each other ; but upon a careful review of all which we have been able to find, we have arrived at the conclusion, that in cases like this, where the plaintiff has been induced to part with his property by means of a fraud practiced upon him, under color of a contract, he may rescind the contract, return, or offer to return, what he received for his property within a reasonable time, and bring an action of general indebitatus assumpsit to recover the value of the property obtained from him by means of the fraud.

The cases of Wilson v. Force, 6 Johns., 110, and Pierce & Pierce v. Drake, 15 id., 475, are full to the point, as ruled by the circuit judge. See also the case of The Manufacturers and Mechanics' Bank v. Gore et al., 15 Mass., 75. Some of the cases referred to at the argument were decided upon a different state of facts, as when credit is obtained upon false representations in regard to the solvency of the vendee of goods, and the time for which the credit was given has not expired. In some of these cases, it has been held that assumpsit will not lie, and that, if the vendor of the goods wishes to bring his action before the credit has expired, he must bring trover, or an action founded upon the deceit.

Whether this is a correct view of the law applicable to such a state of facts, we are not called upon to decide; but upon the precise question involved in the case before us, the authorities are conclusive in favor of the ruling of the circuit judge.

The objection that the judge allowed testimony to go to the jury to show the condition of Langley, as to property, in the spring of 1848, we do not think well taken. It does not appear by the bill of exceptions, at what particular time the ex^ change of property took place. A witness (McIntyre) testified at the trial that the trade took place “ about two years ago last springand the deposition of another witness contained the same statement. It is clear, that testimony to show the con-condition of Langley, as to property, at or about the time when the representations in regard to his ability to pay the note were made by the defendant, was relevant and proper.

The objection that the judge charged the jury, that in case the contract was void for fraud, the plaintiff could return the note at any time, and bring a suit for the value of the property, we do not think borne out by the facts in the case. It is true, that in one part of his charge he so states; but that is corrected in a subsequent part of his charge, in which he instructs the jury expressly, that the plaintiff must show, in order to make out his case, that he returned, or offered to return the note, within a reasonable time; and this we understand the charge to be. Taking it altogether, the jury could not have been misled by it. A witness testified that he presented the note to Langley, who did not pay it, and that he took it to the defendant, in the name of the plaintiff, about the time it became due, and asked him to take it back.

The testimony of this witness shows that the offer to return the note was in fact made within a reasonable time by the plaintiff, and consequently, that this part of the plaintiff’s case was made out by the evidence.

It was further insisted at the argument, on the part of the plaintiff in error (though not contained in the assignment of errors) that the judge committed an error in charging the jury, that in case the note was not received in payment for the wagon, but as security only, it would be sufficient for the plaintiff to bring the note into court, and show that he could not collect it, and had not collected it, and was ready to deliver it up on the trial.

The plaintiff in error cannot object to this instruction. The judge instructed' the jury, that if there was no fraud in the transaction, the plaintiff could not recover, without showing that the note was taken as a security only, and not as a payment and clearly, if it was not taken in payment, but as a security, then the defendant owed the plaintiff for the wagon; as the debt created by the sale of the wagon would not be extinguished by taking the security. The defendant would of course be liable to an action for the price of the wagon, as soon as the credit, if any were given, had expired ; and it certainly would be sufficient for the plaintiff to show on the trial, that the security had failed.

Judgment affirmed.


author: Kkowlton, J.

text:
    Glover vs. Rawson.

      1. Retuen of Writ. — In a suit commenced by attachment, wliicb contained also a summons, returnable at a future day, if the defendant cannot presently be found, it is the duty of the sheriff to retain the writ until the return day, to the end that the defendant may, if possible, be summoned.
    3. Same. — Where the sheriff made a return of non eat inventus a considerable time before the return day, the court after the return day may properly proceed thereon as provided by law, the remedy of the defendant, if any, being by action against the sheriff.
    S. Attachment — Judgment.—Where the attachment has not been personally served, in whatever form the judgment may be entered, it will not be conclusive against the defendant, and no property can be sold under it, except such as was attached.
    (3 Chand., 249.)
    ERROR to the County Court of Milwaulcee County.
    The case is stated in the opinion of the court.

      Wright & Starkweather, for plaintiff in error.

      H. S. Orton, for defendant in error.
   Kkowlton, J.

This suit was commenced in the county court of Milwaukee county. The writ of attachment was issued on the 28th of August, 1850, and made returnable on the first Monday of October of the same year. Two days after the writ was issued the sheriff attached the property, and the next day thereafter (only three days after the writ .issued) returned the writ to the clerk’s office, with his doings thereon indorsed, in which, among other things, he returns that the defendant was not found within his bailiwick.

Upon the 8th day of October, 1850, notice of issuing the writ and execution thereof was published in the “ Milwaukee Sentinel and Gazette,” a weekly newspaper, printed in the county of Milwaukee.

Upon these proceedings, and without general appearance, the defendant made a motion in the county court to set aside the proceedings thus far had. The court denied the motion. The defendant refused to make further appearance; whereupon the plaintiff took judgment as his damages, $294, the defendant being defaulted.

The defendant on writ of error now brings the case before this court and seeks a reversal of the judgment. The publication of notice, having been commenced within thirty days after the return day of the writ, was regular.

The only question necessary to be disposed of is, whether the proceedings are erroneous, inasmuch as the sheriff in fact returned the writ long before the return day therein mentioned, with his indorsement that the defendant could not be found within his bailiwick. There can be no doubt that the sheriff did wrong by thus returning the writ; he should have retained it till the return day mentioned therein. If he had done so, it is more than probable that personal service might have been had upon the defendant. The probabilities, however, are quite immaterial, as it was the absolute duty of the sheriff to retain the writ in his hands until by the exigency thereof he was bound to return it. The court, however, was bound to take the return of the sheriff as it was. It could not be treated as a nullity; upon its face it was sufficient to warrant the court in proceeding to judgment. If the defendant has been injured, his remedy is by action against the sheriff, and not by writ of error.

It is said that judgment in the form entered is conclusive, which is contrary to sec. 22, ch. 112, R. S. We think there is nothing in this position. This section declares the form and effect of the judgment, and, of _ course, it can hare no greater force than is there declared. This section must control the effect of the judgment in whatever form it is entered; in a word, it controls all forms that may be devised.

We can see no reason for reversing the judgment of the county court. It must therefore be affirmed.


author: Whiton, J.

text:
    Clark vs. Drake.
    1. Equity — FORFEITURE.— Courts of equity will not take jurisdiction of a case for the purpose of aiding or enforcing a forfeiture, but will leave the complainant to his remedy at law.
    3. Same. — A. purchased land for a specified price, payable in installments, and agreeing to build a mill thereon, taking a conveyance in fee, but executing to liis vendor B. a deed of defeasance, covenanting that if he failed to build a saw mill on the premises by June 1,1839, then the deed executed to him should become void, and the estate created by it cease and determine. A., after having in part built the mill, failed to complete it by the time required, and abandoned work on it. B., his vendor, took possession, and the premises, by divers mesne conveyances, were by him conveyed to C., against whom A. brought ejectment. Whereupon 0., being in possession, filed his bill to restrain the suit at law, and asking that A. be decreed to release his alleged title to him: E'eld, that the bill was one seeking to enforce a forfeiture, and, it not seeking any discovery in aid of the suit at law, could not be maintained either upon general principles of equity jurisdiction or under § 34, ch. 84, R. S.
    (3 Chand., 253.)
    APPEAL from tbe Circuit Court for Dodge County.
    The appellant Drhlce commenced an action of ejectment against Ciarle to recover the premises in controversy, and thereupon he brought his bill in equity against Dralce for an injunction against the suit at law, and for relief upon grounds which are sufficiently stated in the opinion of the court. Drake demurred to the bill for want of equity, and from an order overruling his demurrer, he took this appeal.

      Collins, Smith & Tappan, for appellants:
    1. The complainant shows that he can successfully defend the ejectment suit, and therefore he cannot maintain this bill. He asks the court to confirm a legal title while a suit is pending at law to try it. He does not claim that his title or right has ever been settled at law. He does not ask any discovery in aid of his defense at law, and he has no need or claim for the interference of a court of equity. Mit. Eq. PL, 144; 2 Story Eq., §§ 854, 859; Alexander v. Pendleton, 8 Cranch, 462 ; El-dredge v. Hill, 2 Johns. Ch., 281; Mit. Eq. PL, 146.
    2. The bill shows that the defendant paid money and made improvements on the premises to a considerable amount, and, because he did not perform his entire undertaking, the complainant asks that he shall forfeit the whole. Courts of equity do not favor or aid or decree forfeitures. 2 Story Eq., §§ 1313-1319; Horsburg v. Baker, 1 Pet., 236; Skinner v. Dayton, 2 Johns. Ch., 526; Divingston v. Tompkins, 4 id., 415. Whether the defendant had forfeited his right, is a question to be tried at law. Lawrence v. Bayard, 7 Paige, 70.

      E. Gr. Ryan, for appellee:
    1. Without any statute, the bill gives the court jurisdiction under the general class of bills guia timet, to ’ remove a cloud from the complainant’s title. 2 Story’s Eq., §§ 700, 702, 705 ; Jervis v. White, 7 Vesev, 413; Hayward v. Dinsdale, 17 id., Ill; Colchester v. Lowten, 1 Vesey & B., 226, 244; Hamilton v. Cummings, 1 Johns. Ch., 517; Pettit v. Shepherd, 5 Paige, 493, 501; Apthorp v. Comstock, Hopkins, 143, 148-; S. C., 8 Cowen, 386. And a court of equity, having taken jurisdiction for one purpose, will assume jurisdiction of the whole case, and restrain the proceedings at law. 1 Story’s Eq., § 64 k to § 71; Russel v. Clark, 7 Cranch, 69, 89.
    • 2. Whatever doubts there might have been, our legislation has ended them, and this jurisdiction is positively imposed on courts oE equity. R. S., ch. 84, § 84.
    8. The bill presents a case in which the defendant has such an advantage at law, and in which the title is so embarrassed, that the court will assume jurisdiction on the general ground of restraining inequitable proceedings at law. 2 Story’s Eq., §§ 885, 904; Nicholl v. Huntington, 1 Johns. Ch., 166, 175. The action of ejectment would only determine the possession; a court of equity only can give the complainant complete relief.
    4. This case is not one coming within the rule that the complainant must first establish his right at law, as may be seen from the authorities already cited. Neither is it a case where it is sought to enforce a forfeiture. A failure of title, by a failure to comply with the terms of purchase, cannot well be termed a forfeiture. But if to be considered a forfeiture, the forfeiture has accrued, was enforced by the complainant’s grantor, and the complainant is in possession. Being in possession, he asks the aid of this court in quieting his title. Livingston v. Van Ingen, 7 Johns., 507 ; Livingston v. Tompkins, 4 Johns. Ch., 432. The deeds between Doty and Drake did not constitute a mortgage at law or in equity. A constructive mortgage is only in cases where there is a debt; and here is no debt. 1 Powell on Mort, 1 to 5, 266 a; Platt on Covt., 565. This is a case of an estate defeasible on a condition, when the grantor ma}r reenter and determine the estate. 2 Co. Lit., 3, 11, 33, 97, 103, 122, et passim.

   Whiton, J.

This is an appeal from an order of the circuit court overruling a demurrer to the complainant’s bill. The bill sets out, in substance, that Charles C. P. Arndt and the defendant, Drake, bargained with James D. Doty for two half quarter sections of land; the said Doty acting in behalf of individuals under the name of the Fond du Lac Company; that the sale was to be on condition that Arndt and Drake would, by tbe first day of June then next, erect a saw mill on tbe land, and pay tbe sum of two hundred and forty dollars, one-tbird in cash, one-tbird in four months, and the remaining third in eight months; that to carry out the agreement, Doty executed to Arndt & Dralce. a deed of the land, and they, at the same time, executed to him a deed of defeasance, by which they covenanted that if they failed to build the saw mill on the land by the first day of June, 1839, the deed executed by the said Doty should become void, and the estate created by it should cease and determine; that, at the time the deeds were executed, the said Arndt & Drake gave their promissory note for eighty dollars, payable in eight months, with interest; that Arndt & Drake commenced building a saw mill on the land, but did not erect a good and sufficient saw mill on the land by the first day of June, 1837, and have not at any time done so, but have abandoned the work and the land; that the said Doty resumed the possession of the land, as the complainant believes; that he believes the said Arndt & Drake have never paid the said eighty dollars, or any part of it; that after the land had been abandoned by the said Arndt & Drake, and while it was in the possession of said Doty as said trustee, one Mason 0. Darling purchased it of him for a valuable consideration, and made valuable improvements thereon; that said improvements were made, as the complainant believes, with the knowledge of said Arndt & Drake, or one of them ; that said complainant and one Bannister purchased an undivided half of a portion of said premises; that the complainant subsequently bought out the interest of Bannister therein, but has not yet obtained a conveyance of it; that he also purchased of Darling the remainder of said land; that he has been in possession of the land purchased of said Darling, since the 15th day of August, 1838, having had possession delivered to him by said Darling at that time; that Darling at that time was in undisputed possession of the land; that the complainant was ignorant of any claim of Arndt or Drake to said land, or any part of it that said Drake, in his own right, and as the assignee of Arndt, claims title to said land, and has brought an action of ejectment therefor against the complainant, in which the complainant is apprehensive the said Drake may prevail. The bill praj'S that the defendant may be decreed to execute a release to the complainant of his pretended title to the land, and also for an inj unction.

To .this bill a demurrer was interposed, which was overruled by the court, and the defendant required to answer in thirty days. From the order overruling the demurrer, Drake appealed, and now insists that it is erroneous, because, on the facts stated in the bill, the complainant is not entitled to any relief; that he claims no discovery to aid him in his defense of the suit at law, shows no right to the land established at law, and seeks to obtain a title to the land, by the aid of a court of chancery, by a decree enforcing a forfeiture. On the part of the appellee, it is contended that the bill of complaint gives the court jurisdiction without the aid of our statute, under the general class of bills quia timet, to remove a cloud from the complainant’s title, and the court having taken jurisdiction for one purpose, will assume jurisdiction of the whole case, and restrain the proceeding at law ; that our statute gives the court jurisdiction ; that the bill presents a case in which the defendant has such an advantage at law, and in which the title is so embarrassed that the court will assume jurisdiction on the ground of restraining inequitable proceedings at law; that a court of equity only can give adequate relief, as the action of ejectment would only determine the possession ; that this case is not one coming within the rule that the complainant must first establish his right at law, nor a case where it is sought to enforce a forfeiture; that, admitting it to be a forfeiture, the forfeiture has accrued and was enforced by the plaintiff’s grantee.

We think that the order of the circuit court was erroneous, and that none of the positions taken by the appellee can be sustained. If the complainant is entitled to the land, he is entitled to it because the condition created by the deed from Doty to Arndt & Drake, and their defeasance back, was not complied with, and consequently the estate was defeated. In other words, the failure of Arndt & Drake to comply with the condition worked a forfeiture of the estate.

It is too well settled to be at all controverted, that courts of equity will not take jurisdiction of a case for the purpose of enforcing a forfeiture, but always leave a party who seeks to take advantage of one to his remedy at law. Harsburg v. Baker, 1 Pet., 236; Skinner v. Dayton, 2 Johns. Ch., 526. It was argued on behalf of the appellee, that the court obtained jurisdiction under the general class of bills quia timet, to remove a cloud from the complainant’s title, and having jurisdiction for one purpose, will assume jurisdiction of the whole case and restrain the proceedings at law. But it is to be observed that the complainant’s right, as sought to be enforced by this bill, is founded wholly upon the alleged forfeiture; unless a forfeiture has accrued the complainant has no right to the land. If the bill had asked for a discovery to aid the complainant in the defense of the suit at law, it might have been sustained ; but asking for none, and founding the right of the complainant to the land upon the forfeiture alone, it seems clear that it cannot be supported.

. It was contended on the part of the appellee, that the statute gave the court jurisdiction of the case, even if, by the general rules governing courts of equity, the court could not take jurisdiction. The statute referred to (R. S., ch. 84, sec. 34) provides that any person having the possession and the legal title to land may institute a suit against any other person setting up a claim thereto, etc.

We do not think that this section of the statute was intended to give courts of equity the power to disregard the well settled rules of law governing their proceedings for the purpose of determining questions of this nature. It was intended to give a person in possession of land the power to institute a suit in a court of equity, in a case proper for the consideration of such a court, against any person setting up a claim to the land, to settle the question of title, although no attempt should be made to disturb the complainant in his possession. In this case the complainant would have no need of aid from the statute to enable him to maintain his bill, if his case was a proper one for a court of equity to entertain, because the bill alleges that the defendant Drake, has commenced an action of ejectment against hijn to recover the possession of the land.

In such a case, if the defendant in the ejectment suit makes out a case proper for a court of equity to entertain, the court will take jurisdiction, sustain the proceedings at law, and make out a final decree between the parties. ■ But here the complainant is met at the threshold with the fact that his right to the land is founded wholly upon the alleged forfeiture, and we must leave him to his remedy at law. The order of the circuit court must be reversed.


author: Howe, J.

text:
    Keep vs. Enos.
    Pbacticb — Filins Papers. — Though a plea is deposited with the clerk, it will not, under rule 2, art. 2 of rules of practice, he considered in the case unless marked “ filed ” hy the clerk; and the defendant declining to put in any further plea: Held, that judgment against him hy default was regular.
    (3 Chand., 261.)
    ERROR to the Circuit Court for Rock County.
    The case is stated in the opinion of the court

      Keep & Todd, for plaintiff in error,
    cited 1 Bur. Pr., 170; Johns. Cas., 413 ; 10 Wend., 634.

      D. Noggh, for defendant in error.
   Howe, J.

This was an action of debt on a judgment recov--. ered in the supreme court of the state of New York, brought by the present defendant in the circuit court of Bock county. By stipulation of the parties a jury was waived, and tbe cause was submitted to the judge, who gave judgment for the defendant in error for the sum of $439.93 debt, and $158.73 damages.

Upon the trial, the plaintiff below moved for the defendant’s default for want of a plea. To resist this motion, the defendant made affidavit that at a previous term of the court, he made out and handed to the clerk a written plea, and directed him to file it; and that he had, at different times, seen the same plea amongst the papers in the cause since. Upon being produced, the plea did not appear to have been marked “ filed ” by the clerk.

The judge decided that he could not regard the plea as in the case, for the reason that it was not marked “filed.” The defendant declined to put in any further plea, and thereupon his default was entered, to which he excepted.

Undoubtedly, a defendant who does not plead in the cause in due season is liable to be defaulted; or rather, he thereby makes default, and is liable to have judgment interlocutory pass against him. A standing rule of practice then existing in the circuit court declared that no notice would be taken of any paper, “unless marked filed by the clerk.” Eule 2, art. 2, old rules.

Under that rule, the clerk’s indorsement was the only evidence of authenticity which the court could receive. The defendant’s affidavit showed good cause for having his plea thus authenticated, but it did not show an authentic plea. On the contrary, he refused to put in an authenticated plea, and his default was properly entered. The neglect to call the defendant, who stood in open court and refused to plead, was not error, nor was it irregular.

By that default, the plaintiff’s cause of action stood confessed, and it only remained for the court to assess to him his damages. This was done by casting interest on the judgment at seven per cent, per annum. Our statute gave to him that interest, in the absence of proof that another rate was agreed upon. No such proof was offered; and whether the testimony of Mr. Smith, as to the rate of interest allowed by the statute of New York, upon judgments, was properly received ór not, it cannot affect the judgment, because it could not have injured the defendant.

The judgment of the circuit court must be affirmed.


author: Hubbell, C. J.

text:
    Pratt vs. Ayer.
    1. Trusts — Evidence. — Express trusts in lands, or such as are created by agreement of the parties, must be evidenced by writing, and parol proof is not admissible to establish them. Bogan v. Walker, 1 Wis., 527; Orton -v. Knob, 3 id., 576.
    2. Same. — The existence of a trust need not be declared in express terms; but it may be proved by any proper written evidence; by an answer, or by a note, letter or memorandum in writing, disclosing facts creating a fiduciary relation. White v. Fitzgerald, 19 Wis., 480.
    3. Same — Contract.—Previous to a government land sale, 0. had taken possession of certain government lands and made valuable improvements thereon, with the intention of purchasing them when put in market. Not having the money with which to purchase at the land sale, it was agreed between- him and A. that A. should purchase the lands, and that if A. would purchase, he would enter into a contract with A. to pay him $800 therefor, being double the cost of the land, and A. having purchased the lands, a written contract was executed between them by which, in consideration of $1.00, part of the purchase money therein mentioned, and on condition that O. would pay A. $800 in five years thereafter, with annual interest, and would pay all taxes on the lands in the meantime, A. covenanted to convey the lands in question in fee simple to him, and O. remained in possession until he assigned his interest to P., the complainant: Held,

    1. That the written contract between A. and O. disclosed the essential particulars of a trust, by which the title to said lands had been taken by A. in trust for O., so as to take the case out of the statute of frauds; that parol proof of the circumstances under which the contract was executed -was admissible, but that in the absence of such contract, parol proof, however strong and clear, could not be received to establish the trust relation.
    2. That the entry having been made by A. upon the promise that O. would enter into the contract in question, and having so entered into it, furnished a sufficient consideration for the agreement of A.
    ' 3. That O. was the real, though A. was the nominal purchaser, and the contract was therefore not in contravention of the act of congress of March 30,1830, prohibiting agreements with any person or persons proposing to purchase, to pay or give such purchaser a sum of money over and above the price for which the land might be bid off.
    4. That the execution of the contract in accordance with the terms and conditions of the previous parol agreement of A. to enter the land and hold the title in trust for O. was sufficient to take the case out of the statute of frauds, and with proof the attending circumstances to entitle O.’s assignee to the execution of the trust.
    6. That neither 0. nor his assignee could maintain of the transaction that it was usurious, and claim a conveyance of the land merely for the amount A. paid for it, with lawful interest; that the trust would be executed by the court upon the payment of the sum stipulated in the contract, with interest.
    (3 Chand., 265.)
    APPEAL from the Circuit Court for Milwaukee County.
    The complainant, Pratt, filed his hill November 14, 1846, stating in substance, among other things, that at and prior to the land sale in the Milwaukee land district in October, 1839, one Isaac C. Owen was in possession of the east half of section 33, town 6, range 19, then being United States land, in Milwaukee county; that Owen had made improvements on it, and wanted to purchase it of government at the sale, but had not the money to make the purchase; and that he applied to Luther Ayer, the defendant, for a loan of sufficient money to make the purchase at $ 1.25 per acre, being $400; and that prior and about the time of the land sale, that said Ayer agreed verbally to loan said Owen the money upon the conditions that said Owen should let the land be bid off by said Ayer, and the title be taken in the name of said Ayer, and that said Owen should take a contract from said Ayer for the purchase of said land from him, and should thereby agree to pay him for said land $800 in five years, with annual interest thereon at 7 per cent. ; and that in pursuance of said verbal agreement said Ayer did purchase said land at said sale for $1.25 per acre; and that after said purchase on the 17th of October, 1839, said Ayer did give said Owen a written contract to sell him the land on the time and terms before set forth; the particulars of which contract, excepting the forfeiture clause, are set forth in the bill, by which Owen covenanted to pay the money, and Ayer covenanted to convey and warrant the title to the land. The bill states that the premises are now worth more than $2,500, and that the complainant, Pratt, is the lawful assignee of said contract and said Owen’s rights under it, and also that said Ayer has received some of the interest money due on said contract; also, that after the assignment to Pratt, to wit: in March, 1845, said Pratt, by his agent, called on said Ayer and tendered him the sum of $556, which was the cost of the land at $1.25 per acre, with interest thereon to that time, and demanded a deed of the land from said Ayer, which tender and deed were refused by said Ayer. And the complainant alleged that he then was and always had been ready and willing to pay the sum of $400, the cost of the land at $1.25 per acre, with interest at 7 per cent., upon obtaining the deed of said land from said Ayer. In addition to the general prayer for relief, the bill prays for a specific performance of the contract, that is, for the conveyance of the land to the complainant with covenants of warranty, upon the payment by the complainant to the defendant of $400, with the interest.
    The defendant, in his answer to the bill filed on the 17th day of August, A. D. 1847, states that the defendant does not know whether Owen was in possession of said land prior to the said land sale or not, but denies that there were any improvements of much value thereon, prior to that time, or that there were any of permanent advantage to the premises, and that said Owen ever applied to him for a loan of money to purchase said land with, at said land sale, but admits that a short time before said land was sold by the United States, that is within a few days before the sale, said Owen did come to him, and wished to make some bargain by which he, Ayer, should buy the land of the United States, but that he refused to make a bargain with him about it, and told him he could not and would not make any bargain about government land before the sale; and that Owen replied, as he thinks, that he could not buy it himself, and that defendant might as well buy it as anybody. He denied that he ever agreed to loan said Owen the sum of $400 upon the condition that the land should be purchased in defendant’s name, and that Owen should take a contract for the purchase of the same from defendant as stated in said bill, or upon any conditions whatever, and denied that there was any bargain made between him and Owen about the land, until after he had purchased the same of the United States ; that he was buying government lands at that time generally, for the purpose of selling them at an advance, and realizing the profit from an increase in their value, and he admitted that a short time after he bought said land of the United States, on the 17th day of October, 1839, he did make a contract in writing with Owen to sell him the land on time, which contract in part is set forth in said bill of complaint, but not the whole of it. The contract is set forth verbatim in the answer, and the part omitted in the bill is as follows : “ Provided always, and these presents are upon this express condition, that in case of failure in the performance of either of the covenants or agreements, on the part of the said party of the second part (said Owen) to be performed, the said party of the first part (said Ayer), his heirs, executors, administrators and assigns, shall have the right to declare this contract void, and thereupon to recover by distress upon the said premises or otherwise, all the interest which shall have accrued upon this contract, up to the day of declaring it void, as rent for the use and occupation of said premises, to take immediate possession thereof, to regard the person or persons in possession on such termination of the contract as a tenant or tenants holding over without permission, if that should he necessary, to regain the prompt possession of the premises and to recover all damages sustained by reason of any unnecessary destruction of the timber or trees growing on said premises, or by holding over without permission.”
    The answer further states, that on the 30th day of November, 1844, more than one month after the principal money and interest on said contract had all become due, the defendant went to said Owen and demanded payment of the same, which was refused, said Owen saying that he had not the money and could not pay the same; whereupon the defendant, íd the presence of witnesses, directed said Owen to leave the premises, and declared the said contract void, according to the tenor and provisions of the proviso in said contract; that this was about four months before the tender of $1.25 per acre and interest, stated to have been made in the bill of complaint. The answer admits that the premises are now worth about $2,000, but denies that the improvements made by Owen and those holding under him have added to the value of said premises, but on the contrary have been an injury to the same, by the destruction of rail and other timber which have been taken from said land, and denies that there had been any payment of principal or interest moneys to him on said contract, and alleges that the defendant has paid a portion of the taxes on said premises, and denies that the tender in March, 1845, as stated in said bill, was an actual tender, inasmuch as the money was not all counted out and offered to him.
    The complainant filed a replication, and proofs were taken. The facts established, so far as they are material, appear in the opinion of the court. The circuit court decreed for the complainant, and that upon the payment of the amount due upon the written contract, of which an account was to be taken, the defendant Ayer should convey the premises to the complainant Pratt, and in default of such payment the complainant Pratt be foreclosed and barred of all right, title and interest in the premises, and from this decree the complainant Pratt appealed.

      J. M Arnold, for appellant,
    argued that courts of equity for the protection of borrowers, who are supposed to be in vinculis to lenders of money, will lean toward the construction of all contracts as loans, where there is an apparent taking of illegal interest, and regard all conveyances- of property as mortgages where there is an apparent security for money, and are bound to look at the substance, and not the forms of transactions. 7 Barn. & 0., 453. In Lawk/ v. Hooper, 3 Atkins, 379, Lord HaRdwicke said, “ there has been a long struggle between the equity of this court, and persons who have made it their endeavor to find out schemes to get exorbitant interest, and to evade the statutes of usury. The court very wisely hath never laid down any general rule beyond which it would not go, lest other means of avoiding the equity of the court should bp found out. Therefore they always determine upon the particular circumstances of each case, and wherever they have the least tincture of fraud, in any of these oppressive bargains, relief has always been given.” Qrim.es v. Schreeve, 6 Monroe, 553. Usury is the subject of the intention of the parties, which must be ascertained from the whole evidence. If it depends upon the construction of a written paper, such construction is the peculiar province and duty of the court. 9 Peters, 378. The test of usury is whether the substance of the transaction is really a loan of money or the creation of a debt, whatever may have been the form of the contract; and if it be a loan, then, whether the Render or payee has stipulated for or secured to. himself by means of the loan, and arising from it, or from anything connected with it, and forming a part of the same transaction, any profit or pecuniary advantage he would not otherwise have been entitled to, exceeding the rate of interest allowed by law. Blyd. on Usury, 254; Dowdall v. Lenox, 2 E.dw. Ch., 267. There must be a lending and borrowing; but if, upon an application to borrow money, a contract for purchasing:property at a low price is made, with the privilege of repurchase, at a price enhanced beyond the legal interest (the first person sustaining no real hazard), it will be considered a device to evade the statute of usury. Blyd. on Usury, 181, 188 ; Lytle v. Logan, 1 Marshall, 529. Every shift, device or substitute, which the ingenuity of man can invent to take unlawful interest, either directly or indirectly, or by any shift, or deceitful way or means, is included in the provisions of the statute. Neither are cases of usury confined to precise loans of money, but they extend to cases where the relation of debtor and creditor exists, etc. Blyd., 185 ; 1 Scho. & Lef., 191; Stachell v. Etheall, 3 Gill. & Johns., 123 ; Blyd., 198 ; Bank of Valley v. Striding, 7 Leigh., 26; Blyd., 295.
    In order to render a contract usurious, there must be, 1. A. loan, either expressed or implied. 2. An understanding that the money lent shall be returned at all events. 3. That not only the money lent shall be returned, but for such loan a greater than'legal interest shall be paid or required. Blyd., 84. It is not necessary to the creation of a loan that money should be paid on the one hand and received on the other; for the circumstance of a man’s money remaining in another’s hand in consequence of an agreement made for that purpose, will equally constitute a loan. Blyd., 84, 85; 1 Oowper, 113; 1 Vesey, 531; 3 Term, 425; 17 Mass., 258. Three things are necessary to constitute usury: a loan, taking more than legal interest, and a corrupt agreement. Bank .of Utica v. Wager, 2 Oowen, 712.
    In all questions touching usury, the inquiry is this: Were the advantages or remuneration stipulated for in consideration of the loan of money, and if so, are they greater than the rate of interest allowed by law? Blyd., 192; Daquin el al. v. Gai-ron, 3 L. R., 393; Blyd., 156; Ely v. McQlung, 4 Port., 128. An agreement to take even a legal rate of interest on a larger sum ¡than is really due is usurious. Blyd., 193; Flaoer v. Mil-law&m, 19 L. R., 185. A contract to receive a reasonable compensation for indorsing the notes of another, payable at the bank, is not of itself usurious, though as such contracts are liable to be perverted to usurious purposes, they are to be viewed with great jealousy. Beckwith v. The Windsor Manufacturing Co., 14 Conn., 594; Blyd., 171. To take a compensation exceeding the lawful rate of interest for obtaining money at a bank on one’s own security for the use of another is not usury. Hutchinson v. Henner, 2 Conn., 341; Blyd., 167. In the case of French v. Brown, 2 Atk., 120, there was a private agreement between mortgagor and mortgagee, that the latter should have a commission for his trouble in receiving the rents and profits. This might not be strictly usury, but Lord HaRD-wicee refused to allow the mortgagee anything more than his principal and interest. 5 Serg. & Rawle, 51; 7 Paige, 581; 13. Peters, 65 ; 5 Johns. Oh., 122 ; 16 Johns., 367.
    Another question arising in the case is, Whether by the usury laws of Wisconsin, then in force, the contract is wholly void, or Ayer is entitled to recover the amount actually advanced by him, with legal interest ? On this subject the decisions in the several states have been governed by their respective usury laws. Although some cases decided by the supreme court of the United States seem to raise the inference that all usurious contracts are void, and cannot be enforced, yet in the case of De Wolf v. Johnson, 10 Wheat., 367, which arose under the usury law of Rhode Island (which is very similar to the law of Wisconsin just cited), the court held that, it would not refuse its aid to recover the principal.
    The bill in this case is filed by the borrower. In this case, Pratt, being the grantee and representative of Owen, stands in, his place, and is entitled to his rights and privileges. Fenno et al v. Sayre, 3 Ala., 458; Blyd., 157; 9 Paige, 139. All that is required of him is to offer to pay the amount actually loaned! with interest. Blyd., 124.

      H Gf. Byan, for appellee:
    I. The contracts in these cases, viewed as the complainant) views them, were not usurious in law. Interest was condemned by the earlier dogmas of the catholic church ; but the habit of receiving it is moral and beneficial, according to the legal and ethical doctrines of several ages past. 2 Black. Com., 454. At common law, interest was the subject of contract, without legal limit; although Lord Hale is reported to have said (Hardres, 420), “ Jewish interest was prohibited at common law, being 40 per cent, and more, but no other. ” But the first English statute in restraint of interest was 37 Henry VIII, ch. 9; 2 Black. Com., 463. That statute simply provided that “ none shall take, for the loan of any money or commodity, above the rate of ten pounds for one hundred pounds for one whole year.” This, as Blackstone says, was a statute to confine interest to 10 per cent. The alleged interest taken in the cases at bar was less than 40 per cent, per annum; so that in any view of the common law, the contract was a fair and legal contract at common law. The statute in force to affect the contract was the “ act relating to interest.” Rev. Stat., 1839, 156. This statute was in restraint of the common law right of taking interest. It declares 12 per cent, legal and valid; allows 7 per cent, as a legal incident; and subjects any one taking more than 12 per cent, to an action of assumpsit for three times the excess, to be brought within a year after the payment of such excess.
    1. This statute differs from the English and almost all of the American statutes. They prohibit the contract; this does not prohibit the contract, which at common law would be and so remains legal, but attaches a specific liability to the receipt. By the English and other statutes, all usury is in the contract. By this statute there is no usury by contract; usury lies in the receipt of the money. Fleckner v. U. S. Bank, 8 Wheat., 338; Thomas v. Gleves, 7 Mass., 361; U. S. Bank v. Waggener, 9 Pet., 379 ; Stevens v. Lincoln, 7 Met., 525. It is no answer to this to say that because a statute affixes a penalty to an act, it prohibits the act. For, firstly, this act does not affix a penalty, but only gives a remedial action; and secondly, even if it be a penalty, it is only for the receipt of the excess. Thus the penalty would operate only to prohibit the actual receipt, and not the contract. And under this act, the contract remains as it was at common law, legal and valid; but the actual receipt of more than 12 per cent, subjects the receiver to an action. And the distinction is a substantial one. By the English, New York and other statutes, a note of $100 payable in one year with 25 per cent, interest is illegal. Usury is in the contract. But by the statute of 1889, there is no usury in the contract; receiving the whole money and interest at the end of the year subjects the receiver to the action. But if the payee waits until the 25 per cent, for the one year, with 7 per cent, for succeeding years, amounts to 12 per cent, per annum only, he may receive without incurring a liability to the action. In these cases, the defendant had not received but refused to receive, the money or the interest. And the greatest length to which a court of equity could possibly go under the act of 1839 would be to restrain him from enforcing the payment of money he would be afterwards compelled to refund.
    2. But even this ground of interference of a court of equity is denied. "Without this statute there would have been no remedy or relief against the contract. The act gives the relief and provides a specific remedy, and where a statute confers a right and provides a remedy to enforce it, no remedy can be pursued other than that furnished by the statute. Almy v. Harris, 5 Johns., 175; Edwards v. Davis, 16 id., 281, 285; Lang v. Scott, 1 Black., 405; Renwick v. Morris, 7 Hill, 575. Under this statute, the specific action for three times the excess is exclusive of all other remedies. Eor these reasons it is contended that the jurisdiction of courts of equity over cases of usury, upon which the complainant founds his claim to relief, does not apply to the cases at bar; and that the bill should have been dismissed upon the hearing.

      II. The contracts in these cases, as exhibited in the pleadings and proofs, were not usurious in fact. If usurious, they were so before the government land sale. Because if the contracts date after the land sale, they were contracts for the sale of the defendant’s land, and not for the loan of money. And before the land sale the contracts were not usurious.
    1. Because they rested upon executory agreements, and there was no debt incurred by the complainants. Blyd., 84, 85; Spurrier v. Mayos, 4 Brown Ch., 28; 1 Vesey, 527. If the agreements were before the land sale had been made, and the defendant had purchased the land, and the complainants had refused to execute the contracts, they could not have been compelled to do so, even if the agreements had been to repay the defendant the government price only. The previous agreements were unexecuted verbal agreements for the sale of land, and void under the statute of frauds. Up to the time of the execution of the written contracts, the complainants had incurred no liability to the defendant. There was then no usury before the land was purchased by the defendant. When he had purchased it, he was under no legal obligation to convey it. The land was his, and he had the right to sell it to any person, at any price. Therefore no taint of usury passes from the void agreement before the laud sale, to the valid contract made after it. No rule which has ever been held for the admission of parol evidence to establish usury in a deed will affect this argument. Because the relations of the parties to the subject changed between the first verbal agreement and the subsequent written contract. No case has been found where parol evidence was admitted of facts antecedent to the status of the parties at the time of the written contract. Where a verbal agreement is made under a legal disability, and that disability is removed before the written contract is executed, no rule ever permitted the original disability to affect the contract. In these cases, the agreement before the land sale is nudum pactum, both as a contract and as a matter of intention to affect the written contract.

      2. The agreements before the land sale were not usurious, because the3r were not for the payment of money al all events. Blyd., 85; Worthy v. Pitt, 1 Yesey, Sr., 164. Now the defendant paid his money, not to the complainants as a loan, but to the United States for their land. Even if there had been a liability on the part of the complainant to pay before the land sale, and even if the prior agreement was not void, still the liability depended on a contingency, the defendant’s purchase of the land at the land sale, which might not happen ; and there was no liability to pay at all events. This argument applies even to the written contract; for by it the money was not to be paid at all events; for there is in it a right of declaring the contract void upon nonpayment. This right the defendant has assumed to exercise; he has absolved the complainant from the payment; he could not therefore sue him on his covenants. And yet after all this, the complainant seeks to be relieved against a usurious liability. This is a fair illustration of the rule, that in order to constitute usury there must be a subsisting contract for the payment of money at all events.
    3. The agreements before the land sale were to buy at government price and sell at $2.50 per acre. Here was a contingency of which the defendant run the risk. The government price was the highest bid at auction; if bound to convey at all, the defendant was equally bound whether he purchased for ten shillings or for ten dollars. This risk avoids all idea of usury.
    4. By the very terms of the agreements, they were not usurious. Here is not the case of men wanting money; the complainant wanted land, not money. The land belonged to a third party who was about to sell it for cash. He applies to the defendant to buy the land. He agrees to buy for cash and sell for credit. A. owns land which he purposes to sell at auction for cash. B. desires to purchase it, but has no money; he applies to 0. who has money, to buy for cash and sell to him on credit, which 0. does. This is not usury. See Spurrier v. Mayos, Blyd., 41; Beete v. Bidgood, 7 Barn. & Ores., 458; 14 Eng. C. L., 80. The possession of the complainant will not aid his case; for he was a mere trespasser.
    5. Construing the verbal agreement and the written contract together, it is not a simple agreement to purchase the land and release the title received. These contracts bind the defendant to convey, with covenants of warranty. The prayer of the bill for a more limited covenant cannot modify the contract or affect the transaction. Covenants of title in a conveyance of land constitute a legal consideration to support a promise to pay money. Here the defendant not only bought and sold, but assumed the hazard of the title. He was to bind himself and his representatives forever to maintain and insure the title he should convey. The defendant sold more than he bought; his covenants were to go to the complainant, with the land that he bought. That the purchase was made by him from the United States does not alter the position. The transaction and its legal and equitable construction are the same as if he bought from John Doe or Richard Roe. The title received by the defendant from the United States was imperfect and inchoate, and subject to be defeated. If defeated, his liability to the complainant remained and accrued. And the purchase money to be paid by the complainant, with interest, would be, by any rule applied to covenants of warranty, the lowest measure of his liability upon breach of the covenants by failure of title. For these reasons, it is believed that the contracts were not usurious, but fair and legitimate agreements, to be enforced in all courts according to the Iona fide intentions of the parties.
    III. As has been seen already, the taking of over 12 per cent, was only prohibited by the forfeiture in the act of 1839. And this forfeiture did not accrue till the actual receipt of the surplus. The act of 1839 was repealed on the 1st of May, 1849 (R. S., ch. 45, ch. 156). At the date of the repeal the defendant had not received the excess, and no forfeiture had accrued. And after the repeal, there was no statute by which the forfeiture could accrue. So that at the date of the decree the defendant might have received any per cent, per annum, without incurring any forfeiture. And as there was no prohibitory clause, and no forfeiture, there was no provision of law to found the idea of usury upon. Gom'th v. Marshall, 11 Pick., 850; Lewis v. Foster, 1 N. H., 61; Builer v. Palmer, 1 Hill, 824; North Canal Street Road, 10 Watts, 851.
    IY. If the agreements before the land sale be construed as agreements to buy at $1.25 and sell at $2.50, then they and the subsequent written contracts are void, under the legislation of the United States. See act of 81st of March, 1880, 4 Statutes at Large, 392 ; also act of 3d of March, 1807, 2 Statutes at Large, 445. Here the complainant agreed, on his own showing, with the defendant proposing to purchase the land, to pay him double the price at which he should bid off the land ; these are the very terms of the former act quoted; the written contracts are, on the showing of the complainant, founded upon that agreement, and therefore null and void. And equity will not enforce them. 1 Story’s Eq., §§ 296 to 298 ; 2 Kent Com., 466; Story’s Conflict, §§ 245 to 247. In these cases the complainant is in this dilemma: Either the contract which he seeks to enforce were before the land sale, and void under the act of congress; or the contracts were after the land sale; and there is no usury.
    Y. These contracts, on the showing of the complainant, were good to the defendant for one-half of the principal sums, and interest at 12 per cent, per annum. And the complainant cannot maintain the bill;
    1. Because, on his own showing, the excess over 12 per cent, on the actual money was alone usurious. And whether a court of law would or not allow the defendant to recover 12 per cent., yet a court of equity will not relieve the complainant, unless he offers in his bills to pay all, deducting the usurious interest. 1 Story’s Eq., § 501; Rogers v. Rathbun, 1 Johns. Ch., 366. Now, here the offer and tender are to pay-only 7 per cent. This is insufficient, and the bill would have been bad upon demurrer, and ought to have been dismissed on the hearing.
    2. The lapse of time, and the disaffirmance by the defendant, had avoided these contracts before the bill was filed. Benedict v. Lynch, 1 Johns. Ch., 369; Wells v. Smith, 7 Paige, 22. Here the complainant asks the aid of a court of equity to resuscitate contracts, dead by their own terms and by law; and asks that, when resuscitated, so much of them as is against his own interest, may be held void, and so much as is for his interest, specifically performed. In other words, the bill seeks, first, the revival of a usurious contract; and second, relief against the usury. The pretense that this is a bill to redeem a mortgage is unfouned. A mortgage may exist in many forms of conveyancing; but there must always be a mortgagor and a mortgagee. And the title of the mortgagee must proceed by, from, or in some way in the right of, the mortgagor. Now the defendant’s title comes from the United States, in the defendant’s own right. And if there be here a mortgage, there is either a mortgage without a mortgagor, or a mortgagor by, from, or in whose right, the mortgagee did not take.
    YI. If these contracts be held to be usurious, the court cannot grant the relief prayed for. The general rule of courts of equity is not to interfere between parties who are in pari de-licto. Certain exceptions are made to this rule, not in favor of a guilty complainant, but in favor of public policy. And usury is one of these exceptions, in which courts of equity will relieve the debtor who agreed to pay usury, against his contract, in favor of public policy against usury, 1 Story’s Eq.,’ secs. 300, 301. But courts of equity will not enforce usurious any more than any other illegal contracts. In sucb cases, the rule in pari delicto applies ; not the exception in favor of public policy. 1 Story’s Eq., 296, a. Here the complainant seek0 to avoid part, but seeks to enforce part by specific performance.. He has no right outside of tbe usurious instrument, and founds Ms right on it alone. The rule in equity is to refuse its aid to a party who founds his claim to relief upon and not against an illegal contract. Bates v. Chester, 5 Beavan, 103 ; 1 Story’s Eq., sec. 296, a; Blydenburgh, 125. All the cases in equity which have been found involving usury, are cases where the complainants have sought relief against the usurious contract, whether executed or unexecuted, and not upon it. And here should be drawn a wide distinction between a debtor w.ho is in vinculis, and agrees to pay usury because he cannot help it; and a borrower who contracts an original debt at usurious interest, and afterwards seeks to have the money at a rate of interest at which he could not have borrowed it, by setting up usury. He cannot be supposed to be in vinculis. To him applies the maxim, volenti non fit injuria. To him it might be said in the words of Lord Coke, “ The covin doth suffocate the right.”
    VII. Pratt, the complainant, claims as the assignee of Owen. His title as assignee, upon the proofs, is denied. But admitting his title, it is claimed that an assignee cannot set up usury. Mechanics' Bank v. Edwards, 1 Barb., 271; Green v. Kemp, 13 Mass., 515 ; Bridge v. Hubbard, 15 Mass., 96, 103 ; Be Wolf v. Johnson, 10 Wheat, 367; Stoney v. Am. Life Ins. Co., 11 Paige, 635 ; Blydenburgh on Usury, 106 ; Flint v. Sheldon, 13 Mass., 443 ; Boardman v. Roe, 13 Mass., 104 ; Hale v. Jewell, 7 Grreenl., 435 ; Denn v. Dodds, 1 Johns. Ch., 158.
   Hubbell, C. J.

The appellant claims as a purchaser, under Isaac C. Owen ; and admitting, for the purpose of the decision, that their rights are identical, it becomes necessary to inquire what was the original transaction between Owen and the ap-pellee. In my judgment, the transaction must be resolved into one of three forms; which may be stated as follows:

1. Ayer purchased the land in controversy, from the United States, absolutely and unconditionally for his own benefit, and afterwards made a contract of sale, with Owen, as any other owner might or would do ; or,

2. Ayer loaned to Owen $400, to enter the land, and after-wards entered the land for him, and took and held the title as a security, by way of mortgage, for the repayment of the principal and a sum exceeding lawful interest, or,

3. Ayer acted as the agent of Owen, in advancing the money, entering the land and taking the title, and now holds the land in trust, to be conveyed to Owen on the terms and conditions mentioned in their written contract. Let us examine these positions in their order. Excluding the parol evidence, Owen undoubtedly appears a simple purchaser by contract ; and inasmuch as the time limited for the payment of the entire purchase money has elapsed long before the filing of the bill, and as payment or legal tender of the amount due on the contract is not shown, his rights, upon this hypothesis, must be regarded as forfeited and lost; and the decree of the circuit court, for that reason, must be affirmed. But a majority of the court do not take this view of the case, and I will not consume time by discussing the principles which lead to the suggested conclusion.

Can the transaction be resolved into a loan of money and a security for its payment ?

This position was strenuously and ably contended for by the appellant’s counsel, who maintained not only that there was a mortgage to which the right of redemption attached, but a usurious loan, and that Owen, the mortgagor, was entitled to redeem on payment of the actual sum advanced (ten shillings per acre for the land), and interest at seven per cent, per annum. If the loan of money and security for its repayment were admitted, it cannot be denied that the alleged results would follow; lapse of time and failure to comply with the terms of the contract would create no change in the relations of the parties. The rule, once a mortgage always a mortgage; would apply; and the court would have no doubt of the right of the mortgagor to redeem on payment (under the statute in force when tbe contract was made) of the principal sum loaned and legal interest. There would be a question of more difficulty, however: Whether a complainant, being a party to the usury, could invoke the aid of equity, first to discover the fact of an illegal contract and then to affirm it in part, and dis-affirm it in part, for. his benefit? It will be time enough to decide a question of so much nicety when its settlement becomes imperative.

The usurious agreement for a loan is by no means clearly established. The evidence shows that Owen made application for a loan of money to enter his land, to which Ayer replied in substance, that he was willing to enter it in his own way; and then states the terms, which were the same finally agreed upon and carried out by the parties. He made no agreement, except to enter the land “for Owen,” in his “own way.” This indeed presents a case, where senses, keen on the scent of usury, might track out a “ contrivance to evade the statute,” but even if we could venture to assume (for it must be assumption at least) that there was an “ agreement for a loan,” there is yet more difficulty in finding that there was a security executed by the borrower to the lender in the nature of a mortgage.

A mortgage is a contract of sale executed with power to redeem. Powell on Mortgages, ch. 2, p. 24. The particular form of the transaction is not material, provided there is a conveyance executed, or procured to be executed, by the borrower to the lender, to secure the payment of the money. “ To constitute a valid mortgage,” says the same learned author, “ there must be a mortgagor, who must be a person capable of granting, conveying or assigning the land or thing mortgaged; a mortgagee, who must be capable of a grant, conveyance or assignment to him; and a thing mortgaged, which must be granted or assigned in that order or manner which the law requires.” Id., ch. S, p. 77. Now if we assume upon the evidence that Ayer agreed to advance money and purchase the land in question of tbe United Statés; to take and bold tbe title, and to give Owen a contract of sale, of tbe form and tenor of that shown to tbe court; and that Owen, on bis part, agreed to buy tbe land of Ayer, at tbe price and upon tbe terms and conditions of the written contract; or (perhaps I should say), agreed to enter into such a contract as tbe conclusion of tbe arrangement; and that this agreement was literally and fully performed by tbe parties, up to and including tbe execution of tbe contract; still there seems to me one essential requisite of a mortgage wanting. Owen, the assumed mortgagor, did not convey, nor procure to be conveyed to Ayer, the assumed mortgagee, any right or interest whatever in the land. When their negotiations took place, the title of the land was in the United States. Though Owen had possession in fact, he was not in any just sense, a person capable of granting, conveying or assigning the thing mortgaged. And what is more, he did not undertake or agree to do it. He agreed to let Ayer enter the land for him; and Ayer so entered it, and paid for it. If he paid for it with the money of Owen, there was a resulting trust to Owen ; but if with his own money, then he was an absolute purchaser, unless for a proper consideration he bad agreed to enter it in trust. At all events, Ayer procured the title to be transferred from the United States to himself, and unless he was his own mortgagor, I profess myself unable to comprehend how he became, in any proper sense, a mortgagee; and much less can I comprehend how Owen became entitled to an equity of redemption in that which he never owned and never transferred or procured to be transferred.

This case differs essentially from that of Rogan v. Walker, 2 Pin., 463; but the court there carefully avoid saying there was a mortgage or a security of that nature. Walker, who entered the land in pursuance of a previous agreement, after-wards actually conveyed it to Rogan; and it was claimed that the deed was conditional and had been absolutely forfeited. Tbe court held that tbe whole was one transaction, and that Rogan beld tbe whole title to tbe land, subject to tbe lien of "Walker for some sum which it did not undertake to determine. This sum might be unpaid purchase money, or money advanced to enter the land upon a trust arrangement. As the case is yet before the supreme court, I will not comment on points designedly left undetermined. I proceed to the last position.

Did Ayer act as the agent of Owen in advancing the money and effecting the purchase? and does he hold tbe land, under their agreement, in trust ? It is said a trust cannot be established by farol. This is undoubtedly true. Steere v. Steere, 5 Johns. Ch., 1; Letcher v. Letcher's Heirs, 4 J. J. Marsh., 598. And here, I conceive, lies the chief difficulty in the view taken by the majority of the court in this case. But the existence of a trust need not be declared in express terms. It may be proved by any proper written evidence, by an answer, or by a note, letter, or memorandum in writing, disclosing facts which create a fiduciary relation. McGubbin v. Cromwell, 7 Grill & J., 157; Forster v. Hale, 8 Ves., 696; Jackson v. Moore, 6 Cowen, 706; Steere v. Steere, supra. The written contract executed between Ayer and Owen disclosed the essential particulars of the present trust sufficiently to take the case out of the statute of frauds. The parol proof was properly admitted to show the circumstances out of which the contract grew. They all tend to the affirmance of the contract. If there had been no written contract, the circumstances alone, however strong, could not be shown to establish the trust relation. And hence it is true, that had Ayer, after entering the land, refused to execute the contract, though the relations of the parties would have been the same, Owen might have been deprived of a remedy by the statute of frauds. But the agreement was fulfilled — the written contract executed; and it is no new doctrine that courts of chancery will look into the circumstances to see why a deed, bond, contract or other written instrument was executed. Such a writing was' precisely what was wanted in Steere v. Steere, supra; and the learned chancellor of New York, while denying the sufficiency of the lame efforts to make out written evidence of the fiduciary undertaking of the defendant in that case, dis: tinctly asserts the principle here acted upon. It is to be observed that the sworn answer of Ayer denies the trust purpose for which the land was entered; but the evidence was quite too overwhelming to leave any question as to the anterior agreement made between him and Owen. It was contended, however, in argument, that this agreement, if made, was without consideration and mutuality. We have thought otherwise., When the verbal arrangement was made, Owen was in possession of the land, having made valuable improvements, with the bona fide intention of purchasing whenever the lands were put in market. His possession was of value, in the estimation of the settlers; and it was in a fair way to-be protected, as we have seen, by the unauthorized but efficient regulations adopted by the community. Sales and transfers of such, possessing rights or “claims,” were frequently made, and for large sums actually paid. They were,, then, worth money, because they would bring it; and it is too late in the day to say that the occupant was a mere' trespasser when taking possession of and improving public lands, with a view to effecting a purchase of the title at government prices. Such alleged trespassers have peopled and fertilized the great west, until the wilderness was made to bud and blossom as the rose, ere the tardy movements of the government provided a means of securing a title by the hardy piotieer.

But congress has recognized the rights of the settler, by passing frequent preémption laws for his benefit; and it is only in the abstract and upon principles more nice than wise, that the courts can hold occupancy and actual cultivation of the public lands as a trespass; or the transfer of such a possession as without consideration.

Were it material in this case, it would be difficult to say that a voluntary surrender of sucb possession and waiver of such, claim of right of entry, in favor of a purchaser, was not a sufficient consideration to support a promise. But the agreement made between the present parties rests upon no such questionable grounds. As the case comes before us, it is an executory agreement. The condition on which Ayer made the entry was, that Owen should enter into the contract produced in evidence. This was done. The execution of the contract by Owen was a fulfillment of their verbal agreement, and is a consideration which Ayer cannot deny. He has had, and perhaps still has, a legal right to sue upon this contract and collect twice the sum actually advanced, and the interest. This is a consideration not only good but sufficient. Again, Owen was equally entitled, by paying the money, to fulfill the contract, and get a conveyance of the land. This is mutuality. But another point was raised, which commands notice. It was contended that Owen’s prior agreement to purchase the land, if made, was in violation of the act of congress of March 81, 1830, and that the written contract growing out of it was void. We think the act does not apply. It prohibited any agreement with “ any person or persons proposing to purchase,” etc., “ to pay or give such purchaser a sum of money, over and above the price at which the land may be bid off,” etc. Here Owen was the person “ proposing to 'purchase.” He was in possession and desirous to obtain title. But for the agreement by which Ayer undertook to enter the land for him, certainly Ayer would have had no idea of purchasing. Ayer was only the nominal, Owen 'the real purchaser and owner of the land. In other words, Ayer was a mere trustee, taking and holding the title for the use and benefit of the cestui que trust, subject to the payment of the sum stipulated beforehand.

This is the view which a majority of the court, after a very careful consideration, have taken of this transaction. Against it, the appellant’s counsel have strongly urged, 1. That the alleged commission of the trustee is unreasonable, extortionate and without precedent; and 2. That the whole transaction waá a mere contrivance to evade the interest law of the territory ; and that equity, throwing off the disguise and looking at the intention of the parties, must hold the agreement void for usury.

It is not a little singular that a contract of this character is now, for the first time, brought before the supreme court of Wisconsin. It would relieve the case of some embarrassment, if contemporaneous courts had passed upon the transaction, at the time of its occurrence. Principles of equity, always flexible, and to be applied according to the actual state and condition of communities and their established business relations, might not have seemed strained by being made to conform to the then actual condition of things.

The history of the times shows that the present transaction was but one of thousands, which spring from necessity, out of the circumstances of the early settlers, and the condition and price of the public_lands. Money was scarce, land was cheap. Settlers and capitalists made such arrangements as suited their respective circumstances and interests; and the result was unquestionably, a mere division of profits. That these agreements were entered into fairly and voluntarily, is evinced by the fact that they have been so uniformly held inviolable. The peculiar circumstances which induces them, probably never existed in the older states of the Union, or in England, and hence the absence of like cases in their courts. Shall we now impeach the validity of a contract, mutually advantageous and voluntarily entered into, simply because other courts, adjudicating under widely different circumstances, might have held it unreasonable, and therefore void ? Shall we say that the amount of the commission in this case is evidence of a design to cover usury, when we can see clearly, and the parties themselves believed, that the amount agreed upon was an equitable division of profits, in proportion to their respective undertakings and risks.?”

It is a poor rule that arbitrarily applies precedent when the reason that induced it has passed away. It is a good and sensible rule, that courts, when they can discover a proper motive for any business transaction, should not conjecture designs which will render it illegal. This most reasonable doctrine has not wanted support, even in the courts to which we are invited to look for precedents. 4 Brown’s Ch., 28; 19 Johns., 496; 9 Peters, 378; 4 Comst., 225.

Those who operated in the purchase of lands at an early day may have avoided or evaded the usury law of the territory. But was that the prominent design of the parties ? Was it the controlling purpose of the present arrangement? It seems to me gratuitous and unjust to draw such a conclusion when other and abundantly good reasons existed for the very arrangement that was made. The trust character which we attach to the transaction not only secures actual justice, but it seems to me the only construction which will carry out the actual intention of the parties themselves. Ayer undertook to act-in a fiduciary capacity; and it would be an unwelcome necessity which would force us to give his contract a different construction, and allow other parties to take the benefit of its fulfillment on paying-one-half only of the stipulated sum and interest.. Hot less unjust would it be to allow him to disclaim the trust and hold the land absolutely, on forfeiture of the contract.

There is no sufficient ground, either in reason or authority, for disturbing the decree of the circuit court; and it must be affirmed with costs.


author: Knowlton, J.

text:
    Codner vs. The Town of Bradford.
    Highway — Proof of Duty of Town to Maintain, etc. — Where a town recognizes the existence of a highway by the expenditure of labor and taxes in its repair under the direction of its officers, and by keeping it open for travel; in an action brought to recover damages sustained by reason of its defective and insufficient condition, it is estopped from denying its existence as a highway and its duty to keep it in repair. Houfe ¶. Town of Fulton, 34 Wis., 608.
    (3 Chand., 291.)
    ERROR to the Circuit Court for Rock County.
    Action on the case brought by Codner against the town of Bradford to recover damages sustained by reason of the insufficiency of a bridge in that town over a creek; he having attempted to pass over it in a careful manner, the bridge broke down and his team was precipitated into the gulf below and one of his oxen was killed and his wagon broken, etc. After proving the insufficient and unsafe condition of the bridge at the time the injury occurred, and for a considerable time previous, and the occurrence of other injuries for that cause, the plaintiff proved that the road- on which the bridge was built had been laid out and opened and used as a highway by the inhabitants of the town and the public generally for more than six years previous; that the town of Bradford had for more than three years assumed and exercised jurisdiction over the road, by making erections and repairs upon the bridge in question, and by appropriating money and highway labor, raised and appropriated by the town for highway purposes; upon the bridge and highway in question; that the road was surveyed •and laid_ out, and that directly thereafter it was opened and used as a public highway, and was thenceforward continued as such.
    The counsel for the town insisted and argued, that the existence of the road, as constituting a public highway, had not ‘been proved; that the legal establishment of the road could 'only be evidenced by the production of the application for laying it out, the original survey and plat, and the record of the commissioners approving thereof, and the commissioners’ 'directions for opening and working the road; or by proving the existence and use of the road as a public ^highway for ‘twenty years.

      The county court, after hearing the evidence, decided and ruled that the road, as a highway, could only be proved by record evidence, or that it had been open and used as such for twenty years. Judgment passed for the defendant, and the plaintiff sued out this writ of error.

      D. Noggle, for plaintiff in error,
    cited R. S., ch. 16, § 103; Heed v. Northfield, 13 Pick., 94 ; Worster v. Canal Bridge, 16 id., 541: 1 Gilm., 4-15 ; Tate v. State, 5 Blackf., 74; 3 Ghitty Crim. Law, 570 ; 3 Term, 265 ; 2 id., 148 ; 14 Yt., 288, 443, 280 ; 2 Greenl. Ev., 622-662; 19 Johns., 365.

      S. J. Todd, for defendant in error:
    The evidence of the laying out of a highway under the laws of the territory or state of Wisconsin is a matter of record, and it must be proved in the same manner as other records. R. S., 176, sec. 55; id., ch. 107, sec. 6; Greenl. Ev., 86 and 50. A town is only bound to repair legal highways. R. S., eh. 59, sec. 5; 13 Pick., 97; 1 id., 180, 189 ; R. S., ch. 16, see. 80 ; 7 Wend., 145. No road in this state is a legal highway unless laid out pursuant to the provisions of laws of the United States or the state or territory of Wisconsin, or unless the same has been used for twenty years. R. S., ch. 4, sec. 1; 2 Johns., 424; 7 id., 106; 9 id., 365 ; 17 id., 277; 2 Cow., 426 ; 2 Greenl.' Ev., 662.
   Knowlton, J.

The evidence in this case clearly shows that the town of Bradford recognized the road in question as a legally constituted highway. The means provided by law to make and improve highways so as to render them safe for traveling, has been expended upon this road by the agents (the officers) of the town. Thus it proclaims to the world that this road was one of its public'highways, and it is therefore estopped from denying it to be such in an action for the recovery of damages sustained through the neglect of officers or agents of its. own appointment. If labor and taxes were expended upon a road not established in accordance with the law, it is the fault of the town, and it cannot be permitted to take advantage of its own wrong. It would be a harsh rule to require a person to search the records and survey the traveled roads, to ascertain if all the minutiae of law had been complied with, and the public money and labor had been expended upon the exact route laid out and surveyed, before he could travel in safety, though he may have paid taxes and worked for that very security that the law declares he shall have while traveling upon the public highways. In an action like the one under consideration, it is only requisite to prove that the road was one in fact, and so recognized by the town through its legally constituted agents, in order to make it liable in damages.

The authorities relied upon to sustain the judgment of the court below apply to cases where the town sues to enforce the right of way against a person claiming title to lands over which the highway passes. We hold that the requirements of law for keeping records, etc., are for the protection of the town in maintaining the right of way over lands upon which the road has been located, against the world. In an action of that nature, it might be necessary to prove a compliance with the law, in order to maintain the suit. The rule is clear that prima facie evidence is sufficient to maintain an action against a quasi corporation, for damages through the neglect of its officers.

We are clearly of opinion that the judgment of the county court of Rock county is erroneous, and should be reversed.