
    *Lane’s Executrix v. Ellzey.
    December, 1828.
    Chancery Practice — Foreclosure of Mortgage — Usury— Evidence. — If to a Bill brought to foreclose a mortgage, the Defendant pleads Usury, and the Bill itself on its face, and the documents filed with it. present a case of Usury, such as is pleaded, it is not necessary for the Defendant to take depositions to support his plea. His adversary’s Bill supports his plea.
    This case has been on two former occasions before the Court of Appeals, and in the brief statement which will be made of it, a reference will be made to those decisions.
    Thomazin Ellzey, by Deed of Bargain and Sale, bearing date 9th November, 1799, conveyed to William Lane, a tract of land in Fairfax County, containing four hundred and seventy-five and three-fourth acres, for the consideration of 4751. 15. On the same day William Lane signed an agreement in writing, by which he stipulated that if Ellzey should re-pay him the said sum of 4751. 15, with legal interest on the same, and the rent for the present year (1799,) within, or at the end of six weeks from that day, then that the said Lane would give up to the said Ellzey the said Deed. This agreement was copied and certified to be correct by the said Ellzey.
    In 1800, Lane brought a suit in Chancery to foreclose the equity of redemption in the said land, charging that the said Deed, though on the face of it an absolute conveyance, yet when taken in connection with the agreement aforesaid (which he recites) was a mortgage. In May, 1801, the Bill was taken for confessed, and a Decree rendered by default against Ellzey, the Defendant, directing a sale of the land by Commissioners, &c. Before a sale was effected, Ellzey, in March, 1802, filed a Bill of Review, charging that the conveyance was obtained by Lane on an usurious consideration, and praying to be released from the interest. That Bill of Review was dismissed by the Court of Appeals in October, 1808. See 2 Hen. & Munf. 589.
    Upon the cause being sent back to the Superior Court of Chancery at Richmond, and William Lane being dead, it Kwas abated as .to him, and in June, 1809, on the motion of Sally Lane, his Executrix, a Subpoena Scire Facias was awarded to revive, the suit. The Defendant, Ellzey, on the return of the Sci. Fa. in February, 1810, tendered a plea of the Statute against Usury, which avers, that from the scope of the Bill originally filed, and from the Deed and agreement referred to as exhibits in the said Bill, the said William Lane exacted of the Defendant a greater compensation for the sum advanced to the Defendant than the legal rate of interest. The Chancellor refused to receive the plea but on certain terms imposed by him: these terms not being complied with, the plea was not received, and an interlocutory Decree was entered at February Term, 1810, for a sale of the land by Commissioners. The land was sold, and the money paid to Lane’s Executrix, and on the 6th February, 1811, a final Decree was rendered, confirming the sale, from which Ellzey appealed. In March, 1813, the Court of Appeals decided, that “although the statement made in the Bill may possibly be explained so as to show the transaction not to have been usurious, yet there being strong reasons, from that statement, to believe that the matter of the plea in the proceedings mentioned, may be true, which defence, where it is probably correct, ought at all times to be received in a Court of Equity, (so long as the case is within the power of that Court,) without annexing any unreasonable condition thereto,” reversed both the interlocutory Decree of February, 1810, and the final Decree of February, 1811, and remanded the cause to the Court of Chancery, with directions to receive the plea, or such other plea or defence as the part.y may offer touching the usury of the transaction in the Bill mentioned. 4 Munf. 66.
    On its being returned to the Chancery Court, then established at Fredericksburg, the Defendant filed his plea of usury, averring, that on the 9th November, 1799, it was corruptly agreed between William Lane, and Thomazin Ellzey, that the former should lend the latter the sum of 4751. 15, and that Ellzey should re-pay the principal at the expiration of six weeks, and that for the forbearance of the said principal, the said Ellzey should paj' interest at six per cent, per annum from the said 9th November, 1799, and the further sum of 401., the amount of the rent of the land for that year; and that to secure the payment of the said several sums, the Deed in the Bill mentioned was executed. Issue being taken on the plea, the Court of Chancery, on the 2d May', 1817, sustaining the plea, dismissed the Bill, from which Decree the Plaintiff appealed.
    Leigh, for the Appellant.
    Nicholas, for the Appellee.
    
      
      Kee mouograpbic note on “Mortgages” appended to Forkner v. Stuart, 6 Gratt. 197.
    
    
      
      Absent, the President ana Jtjdok Greek.
    
   December 18.

JUDGE COALTER

delivered his opinion.*

This Bill is filed to foreclose a mortgage. It is stated in the Bill to be a mortgage. If the Bill had averred that Lane had, a year before, purchased and paid for the land, and had then agreed to re-sell it to the Defendant for the sum paid, and the rent of the land for that year, it would have given such explanation of the transaction as would, I presume have required an Answer, such allegation not being so inconsistent with the transaction, as evinced by the writings, but that it might have been averred, and proved. This is not done, but it is merely alleged that the Defendant did not, within, or at the end of six weeks, pay the said sum, (which had before that time been paid to the Defendant for the said land,) with legal interest on the same, and the rent for the year 1799. The interrogatory part of the Bill calls on the Defendant to say whether he did not execute the Deed, (which is a common Deed of Bargain and Sale, without defeasance on its face:) whether the Plaintiff did not pay the said sum of money to his order: and whether he did not consent to the agreement made by the Plaintiff to restore the Deed, on his paying *the said sum with legal interest, and the rent therein mentioned: and whether it was not at his special request that the Plaintiff agreed to the terms of the aforesaid agreement.

The agreement thus referred to, bears equal date with the conveyance and states nothing like a previous sale and a re-sale; but simply that Ellzey having conveyed to Lane four hundred and seventy-five and three-fourth acres of land on that day for 4751. 15, he (Lane) agreed that if Ellzey, within, or at the end of six weeks, shall pay the said sum with legal interest, and the rent of the present year, then he agrees to give up the Deed.

The plea of usury being filed, it is said that Ellzey must prove the usury.

The Deed shows the parties to be both citizens of Virginia, and the land to lie in the County of Loudoun, so that it cannot be foreign interest.

The sum due for the rent is not stated in the Bill, but the rent, (be it more or less,) is claimed in the Bill. The quantum is not material.

It has been urged though, that the Defendant must prove his plea. This plea was filed at Rules in July, 1814, and in June, 1815, the Defendant was ruled to reply, In May, 1816, there was a general replication. No depositions were taken on either side, and in April. 1817, the cause was set for hearing by the Plaintiff.

It seems to me, that the Bill, and the documents filed with it, present such evidence of usury in support of the plea, that it must be taken as true, unless some explanation, compatible with the pleadings, had been adduced on the other side.

Nothing of this kind is done, though this Court formerly thought some explanation might possibly be given. 4 Munf. 66. No explanation being given, and the case being quite clear for the Defendant, the Decree must be affirmed.

JUDGES CABELL and CARR, concurred.  