
    Thomas Thomes, qui tam, &c., versus Daniel Cleaves.
    
      A conveyed to B land of the value of 1600 dollars, for the consideration of 350 dollars; B, at the same time, undertaking to reconvey it upon payment of 522 dollars 97 cents, at two instalments, the last within three years from the date of the contract; no part of the 522 dollars 97 cents were paid: it was held that B was not liable to a qui tarn action for taking usurious interest.
    This was a popular action brought to recover two several penalties, alleged to be forfeited by the defendant, by force of the statute of 1783, c. 55, against usury, for receiving of one James Rounds usurious interest on two several corrupt usurious contracts.
    The defendant pleaded the general issue, upon which a trial was had before Sedgwick, J., November term, 1809.
    At the trial no evidence was produced but of one contract between the defendant and Rounds; and as evidence in support of the action, and to prove the corrupt contract stated in the plaintiff’s first count, he offered a deed from Rounds to the defendant, conveying sixty-two acres and a half of land, which he also offered .o prove were worth, at the time of the conveyance, sixteen hundred dollars, and that the defendant, in fact, paid therefor no more than three hundred and fifty dollars. The defendant had, by a memorandum in writing not under seal, agreed with Rounds, that if the latter would pay the defendant five hundred and twenty-two dollars ninety-seven cents, at two instalments [ * 362 ] * the last of which was within three years from the date of the conveyance, he would convey to Rounds all the right to the land which he, the defendant, had under Rounds’s deed to him; the plaintiff then offered to prove that the contract, although disguised as a purchase of, and a contract to reconvey land, was, in truth, a mere loan of money upon a usurious agreement. He also stated that, except the said conveyance of land to the defendant, he had no evidence to prove that the defendant had received any thing whatever of Rounds, upon or towards the said loan.
    Whereupon the judge directed a nonsuit, with liberty to the plaintiff to move to have the same set aside, and a new trial granted, if the said direction should, by the Court, be determined to be wrong.
    At the last May term, in this county, Holmes, of counsel for the plaintiff, moved the Court to set aside the nonsuit; and he urged that this was an indirect but gross attempt to evade the wholesome provisions of the law against excessive usury. Here was a loan of money, and a conveyance of land made as a pledge to secure the repayment, with usurious interest. Pursuant to the contract, the pledge has become forfeited, and the defendant has an absolute title to the land. If he is not answerable in this action, the law seems to have furnished no method in which oppression of this kind can be reached. The forfeiture of the land is equivalent to the payment of the money by Rounds. Although originally intended only as a security for the payment of the money and the usurious interest agreed upon, yet, being forfeited, and the whole power of redeeming it gone from Rounds, it has become payment.
    
      King, for the defendant, contended,
    that no money having been paid, there was no fulfilment of an usurious contract, if such a one had been made. It is essential to the nature of a loan, that the thing borrowed is at all events to be restored;  and it is settled, that evidence of usury shall not be given, in a prosecution for the penalty, unless the money has been actually and wholly paid. 
    
    * If the plaintiff recovers in this action, the defendant [ * 363 ] is exposed not only to lose the money loaned by him, but also to forfeit the land, and the amount of the loan by way of penalty.
    But the defendant has a right to say that this was an actual sale; and because Rounds might think the land worth more than the consideration paid, the defendant gave him the right of preemption. This right he should have pursued; and when he had paid the money, if the agreement was corrupt and usurious, he would not then have been without his remedy.
    
      Holmes, in reply.
    By the very act of selling the land, Rounds was disabled from raising the money to redeem it. Non constat that the defendant will ever lose the land; and as to the money, there is no pretence that he has a claim to recover it in addition to the land.
    If a simple practice of this kind is sufficient to avoid the forfeiture for usury, the provision of law inflicting the forfeiture may as well he repealed, for it will in every case be evaded.
    
      
       3 Wils. 395, Murray vs. Harding.
      
    
    
      
       1 Hawk. P. C. c. 82, § 27
    
   The cause stood over to this term for advisement, and now

Parsons, C. J.,

delivered the opinion of the Court, after stating the action and the substance of the

The propriety of the judge’s direction at the trial is the question before us.

The agreement may be usurious, and the conveyance made by Rounds to the defendant, as a part of such agreement, may be void; but the penalty is not incurred unless the lender, in fact, under the agreement, corruptly receive above the sum of six pounds for giving day of payment for one hundred pounds for a year, or after that rate; in which case he shall forfeit the full value of the money or thing loaned. The plaintiff’s counsel has accordingly argued that three hundred and fifty dollars were loaned, and * that the conveyance of the land, by Rounds, to the [ * 364 ] defendant, was a receipt by him of usurious interest for giving day of payment.

But we are satisfied that this argument ought not to prevail, because it is founded on an erroneous idea of the agreement. If the conveyance of the land was a payment of interest, in consideration of giving day of payment of the principal sum of three hundred and fifty dollars, then, under this agreement, Rounds, after the agreement, remained indebted to the defendant in that sum. But the manifest intent of the parties was, that, on the defendant’s receiving this conveyance from Rounds, the latter was discharged from any demands the defendant had against him on account of this loan. Rounds might repurchase the land of the defendant on an usurious payment of the money.

We are therefore satisfied, on the plaintiff’s own statement, that the land was received by the defendant, not as a payment of usuri pus interest, but as a security "for the repayment of the three hundred and fifty dollars, with usurious interest. And as a repayment of this sum, or of any interest thereon, has never been made the penalty, to recover which this action was sued, has not been incurred.

As it is very clear that Rounds, on proving the case stated by the plaintiff, may avoid his conveyance of this land, the conclusion is equally clear, that this conveyance must be considered as a security for the repayment of the money borrowed, with the illegal interest, and not as an actual payment of that interest, or any part thereof. A nonsuit of the plaintiff was, therefore, in our opinion, very properly directed by the judge, and the defendant may have judgment upon it.

Cost for the defendant.  