
    HIRAM HATHAWAY v. DANIEL HAGAN.
    [IN CHANCERY.]
    
      Foreclosure of Mortgage'. Usury. Award. Submission. Oral Agreement as to Mote. Report of Master. Exception. Interest. Answer. Gross-Rill. Mistalce.
    
    1. An oral submission, and not a written award, governs as to what was submitted.
    2. "When the payor oí a mortgage note, in a .foreclosure proceeding in accounting before a master, is allowed, without objection, or exception to the report, to prove an oral agreement relating- to the note, and made at the time of its execution, in effect that the payor protested that he did not owe it, and that the payee promised that, if on the settlement it was not found all right, he would make it so, such agreement is as operative as though a part of the note itself; and compels the payee to show consideration aliunde.
    
    3. Interest Raid by Mistake. And in such accounting the payee cannot retain interest paid by mistake on a note designedly written without interest.
    
      iy Usury. Money paid above the legal rate for the forbearance of an existing debt is usury.
    5. Usury — Ekaud. Usury cannot be covered by the subterfuge of a sale or of an unfounded claim for damages to hired property.
    G. Answer — CitOSS-BlLU. In a foreclosure proceeding where the master reports an overpayment of the mortgage, the defendant under an answer is not entitled to affirmative relief; but the case on motion will be remanded that a cross-bill may bo filed.
    Bill to foreclose a mortgage. Heard on the report of a special master, March Term, 1886, Washington County, Powers, Chancellor. It was decreed that the award made by W. B. Porter, arbitrator, was not conclusive of the matters in controversy; as it was upon other differences than those now involved ; that the burden was on the orator to show a consideration of the $361 note, and that he had failed to do so; that defendant is entitled to the interest paid by mistake on the note written without interest; that the $120.50 claim is without consideration, save the $6 due for rent of cow, and $5, actual value of sleigh; and that, if on the above holdings there was anything due the orator, he was entitled to the usual decree. The facts are sufficiently stated in the opinion.
    
      T. J. Deavitt, for the orator.
    There is the ordinary presumption of consideration in the $361 note.. Harrington v. Lee, 33 Yt. 249. As the note was given prior to the statute of 1867, which changed the common law, the defendant cannot sot up a partial failure of consideration. Thrail v. Horton, 44-Yt. 386; ClO'Ugfi Y.-BtUrick, 37 Yt. 421; Oragin v.'Fowler, 34 Vt. 326: ' Extension of time is a good consideration: - 2 Am. Lead.' Cks. 184.
    
      Heath & Willard, for the defendant.
    The submission, and not the award, 'though written,''determines what wasi submitted. .Hdvis v. yCi,<!,<£ 15. .East, .57 ; Bucd&uch v.-Board of Works,- L. R. 5 Ex. 221;. Blackwell v. Goss, 116 Mass. 394; Caltl. Arb. 289 ; Price j, B.ópl¿in}¡ 10 A. & E. 139. -.Upon a., bill,..brought for an 'accounting).the party against whom the balance 4s- found 'will be decreed to pay it. 1' Dan. Clnin.Brae..'285 ; üoluml/iciñ ‘Góv’.'v. Rothschild, 1 Sim. 94; Wells v. Stranger, 5 Ga. 22; Campbell,,y . Campbell, 4 Halst. Ch. 740; Clark v.-¡Tipping, 4 Beav. 588. See llarrigan v. Bacon, 57 Yt'::644';' 'DiviiMlW.''Bliss‘,'‘h'$Wf. 353., The burden was on .the- orator'.to. shpw a consideration of the note. Delano v. Bartlett, 6 Cush. 364;-' Small v. Clewly, 62 Me. 155 ; Search v. Miller, 9 Neb. 26.
   The opinion of the court was delivered by

Rowell, J.,

. The awaid.is not binding as to the-..matters in ' dispute here, for they were not submitted,, hut: only .the-.matter ... as to tlnntliree.uuonths -and a halfsi interest... And-the faet-that.-> the award recites: that all. matters in. difference were submitted./., is not ¡controlling ;.-foivit;is the .submission that -governs, as toé what wasj submitted, and not the award.. ■■ n.... m., ...

The piaster binds,, on testimony admitted ¡without' objection'/-.-. that.tlae defendanfisigned the $361 note,¡protesting that he:did<.<not oavo it, anti under the orator’s oral agreement that if on looking over and settling, it Ayas not found to be all right, he Avould make it right. The report is not excepted to, and this branch of the case stands for disposition on the facts reported. The oral agreement being proved Avithout objection, it is as fully operative as though it had been reduced to writing as a part of the note itself, and takes aAray the othenvise prima facie effect of the note as evidence of consideration, and compels the orator to sIioav consideration aliunde, Avhich ho has failed to do, and therefore cannot recover the note.

Nor can he retain the interest mistakenly paid upon it, as it Avas designedly written without interest.

. As to the $50 for damage on the coav, parcel of said sum of $120.50, the master finds that the orator had no Aralid claim for such damage, but that ho took adArantage of the defendant’s necessity for extension of time on his notes, and compelled him to allow it, Avhich ho Avould not have, done, and which the orator kneAv he would not have done, but for his necessity.- A similar finding in Sartwdl v. Horton, 28 Yt. 370, was regarded as a distinct finding that the claim Avas false to the knowledge of the party making it; and we regard this finding as amounting to that. This being so, the orator is not entitled to receive, nor to retain, if he has received, that $50. Hartwell v. Horton is full authority for this, in AAdiich the rule is laid doAvn to be, that if there.is a Avant of good faith in making a claim, and the party making it is exacting that Avhich he does not believe to be a right, .and there be — among other things — any undue advantage taken of the other' party’s situation, and he pays money, it may be recovered. Hoyt v. Dewey, 50 Vt. 465, is to the same effect. And see Bellows v. Sowles, 55 Vt. 391.

Besides, this transaction aauis clearly usurious. It \vas nothing but an agreement on the one hand for receiving, and on the other for paying, interest aboAre the legal rate for granting further time; and money paid aboye the legal rate for the forbearance of an existing debt is usurious as avoII- as money thus paid at the time of the loan or the creation of the debt. Carlis v. McLaughlin, 1 D. Chip. 111; Hawkins v. Life Ins. Co. 57 Vt. 591.

As to the purchase price of the sleigh, other parcel of said sum of $120.50 : The defendant did not want the sleigh, and had no use for it; but the orator took advantage of his situation and compelled him to buy it at fifteen times its value, in order to get extension on his notes, which were then in the hands of an attorney for collection. These circumstances make that transaction usurious also, notwithstanding the subterfuge of a sale resorted to to cover it; for the law is quick to discern the intents of men, and piercing even to the dividing of the joints and marrow of sham and pretence. Austin v. Harrington, 28 Vt. 130; Low v. Prichard, 36 Vt. 183; Poland, C. J., in Williams v. Wilder, 37 Vt. 613, 619.

It resulting from this holding that the defendant has largely overpaid his mortgage, he asks for affirmative relief in respect thereof under his answer, claiming that tKs is a bill lo account, and that in such cases the-periy against whom the balance is found will be decreed lo ] ay it. Put although an accounting is incident to a Lili to foreclose, yet such a bill is not a proper hill to ata unt; for what are called bills to account are brought only when there ate mutual accounts between the parties, that is, when tacli paity has received and paid for the other; or when the accounts are all on one side, but there are circumstances of great complication and difficulty in the way of adequate relief at law; or when a fiduciary relation exists between the parties, and a duty rests upon the defendant to render an account to the orator. 3 Pomeroy’s Eq. s. 1421.

And now, the defendant asking for liberty to apply for leave to filo a cross-bill, the cause is remanded for that purpose, with mandate. , ■  