
    Stapp against Phelps.
    [Mr. Owsley for plaintiff: Mr. J. T. Morehead for defendant.]
    CllANCERY.
    From the Circuit Court for Russell County.
    
      June 20.
    Bill — charging that an absolute deed was intend ed only as a security for money lent, at usurious interest; & seeking to redeem. Answer— denying the principal allegations ofthe bill in general terms — as, that the consideration was not as stated in the bill, & stating it differently, without giving the particulars of the purchase ; alleging that “ what the compl’t says about the $98 and usury, is false, without denying specifically the precise charge of usury in the bill, or that there was any usury prac-tised ; and not denying specifically, that the com plainant was to have the right of redeeming the land, by paying the money with usurious interest. Held, that, notwithstanding the vague denials of this evasive answer, &. as there is some proof of usury, tho’ the extent of it does not appear, the comp’t must ba permitted to redeem.
   Judge Ewing

delivered the Opinion of the Court.

The complainant’s bill is so unskilfully drawn, that it is rendered difficult to determine what relief, if any, should be afforded him. But, upon the best scrutiny we are enabled to give to the whole case, we think he is entitled to some relief.

The answer is evasive, and irresponsive to the several charges contained in the bill. It admits the conveyance, and denies, in general terms, the consideration set out, and attempts to set out another, to wit. That it was given for thirty dollars advanced to buy his beds, in part, and the residue was for property of the complainant, which he had bought under execution and surrendered back to him; without alleging what property, or its value, or what he had bid for it. The facts disclosed in the answer, may be partially true, and if so, might have furnished, in the conscience of the defendant, a sufficient pretext for the general denial of the consideration, as-charged; and yet it might be true, that there might have been an understanding that he should purchase the articles, and that they were to be given up, upon the money advanced for the purchase being secured, by the conveyance of the land, as security for its re-payment, with usurious interest. And this conclusion is strengthened from the fact, that he does not pretend to show what was the bargain for the land; what the price agreed on; when paid, or to be paid, or what was the value fixed on it, or whether sold in gross or by the acre. These things are generally well known and agreed on in a bargain of purchase, and if there be no intended concealment, might have been easily set out. The defendant, after making the foregoing general response, and evasive explanation, concludes, in equally general terms, that “what the complainant says about the ninety eight dollars and usury &c. is false;” making his denial apply to both charges, to wit. the ninety eight dollars and usury, without denying in separate and direct terms, that the eighteen per cent, charged, or any other per cent, in usury, was agreed on, or promised to be refunded, upon the ninety eight dollars, or any other sum. Nor does he pretend to deny, that Commonwealth’s paper was advanced, and that it was at a depreciation at the time, or that the complainant was to have the right to redeem the land, upon refunding the money advanced and usury. And the conclusion is still further strengthened, that there was no purchase, from the fact of the complainant’s having been permitted to remain in the possession so long.

The bill alleging that the loan was in Com’th’s paper, and the answer not denying that allegation, the value of the paper must be taken as the sum loaned.

The amount of usurious interest to be ascertained, in the conrt beiow,by a com missioner , and deducted from the debt; and upon payment of the balance with lawful interest, the conipl’t to have the land re-conveyed to him.

The proof is, also, persuasive, indeed perfectly satisfactory to the mind, that the land was held as a security for money loaned, and was to be re-conveyed upon its re-payment; and the evasions of the answer, together with the proof of his urgency upon an embarrassed man, to have an absolute conveyance, that he might have the power in his own hands, as the means, as he said, of saving himself from the advantages which others had taken of him, to whom he had loaned money, all confirm us in the opinion, that eighteen per cent., or some other per cent., in usurious interest, was reserved, and intended by the absolute conveyance to be secured.

But what sum, or what description of money, was advanced, and what shall be refunded, is not so clear*

The witnesses all concur, in stating it to be one hundred dollars, according to his (the defendant’s) repeated confessions. But it is not stated whether it was one hundred dollars in good money, or in Commonwealth’s paper. But we are inclined to think, as the loan is charged to have been made in Commonwealth’s paper, and the defendant has not denied it, and as Commonwealth’s paper was the general currency at the time, that that was the quality of money advanced.

The decree of the Circuit Court is, therefore, reversed, and cause remanded, that a decree may be rendered, requiring the defendant to re-convey the land conveyed to him, with costs, upon the complainant’s re-paying to the defendant, the value of one hundred dollars in Commonwealth’s paper at the date of the deed, with interest thereon, and the costs at law, on a day to be fixed by the Court, and on his failure to make payment, that his bill be dismissed with costs, without prejudice — the Court first ascertaining, by a commissioner, the value of the Commonwealth’s paper, in specie, at the date of the deed. And the plaintiff is entitled to his costs in this Court.

Petition for a Re-hearing.

•Ocldber 25.

If the counsel for the defendant in error could be heard again, in opposition to the claim of the plaintiff for a decree in this cause, he believes he will be able to maintain, that, upon the case made out by the complainant’s bill and the proof in the case, he cannot be entitled to a decree.

The bill alleges that the complainant borrowed from the defendant ninety eight dollars, in Commonwealth Bank notes, which were to be re-paid, with eighteen per cent, interest; and that, to secure the re-payment of the money, the conveyance of the land was made to the defendant.

' It charges neither fraud nor mistake; and it is palpable, from the complainant’s own showing, that the deed was executed in strict conformity to the sense and agreement of the parties at the time.

It is not alleged when the money was loaned; or that any note or bond was given for its payment; or when the deed was made; and the deed itself is not exhibited. The answer affirms an absolute purchase of the land, and states the facts connected with it. But it charges that “ the statements of the bill as to the consideration on which the deed was based, are utterly falsef’ and it repeats, as it seems to the counsel, with sufficient emphasis, “that what the complainant says about the ninety eight dollars, usury &c., is falsef and charges that the “defendant purchased the land fairly and absolutely, without such understanding or agreement as that alleged by the complainant.”

Such being the issue, the question is, is the complainant entitled to a decree ?

Without detaining the Court with a tedious argument in detail, the counsel for the defendant insist, that the cases of Morris vs. Morris, 2 Bibb, 311; Thompson vs. Patton, 5 Litt. 74; and Snelling vs. Utterback, 1 Bibb, 610, are conclusive of the question — whether the proof is sufficient to convert an absolute conveyance into a mortgage.

Whatever may be the rule adopted by other courts, this Court seems to adhere to the doctrine, that parol proof will not be admitted to vary or control the terms of a deed: and more especially such loose and unsatisfactory details of the declarations of the defendant, as this record presents. If the complainant obtains a decree, he must obtain it upon evidence which this Court has, in almost innumerable instances, pronounced, the weakest and most dangerous of any other recognized as competent in a court of justice.

See, also, Roberts on Frauds, 95, f. note; 1 Cruise's Digest, 471; Townshend vs. Strangroom, 6 Vesey, 328; Lord Irnham vs. Child, 1 Brown’s Ch. C., 92; Fonblanque’s Eq. last Am. Ed. 373, note.

But there is another point to which it is deeméd- important to call the attention of the Court.

If this bill be any thing, it is a bill to redeem; and if it be so regarded, there is a fatal defect, which must prevent a decree for the complainant.

The complainant makes no tender in his bill, of the money which he admits to be due, and no offer to pay the amount due, with costs.

It is certainly an essential part of a bill to redeem a mortgage, that it offer, in express terms, to pay the amount due, with costs. Beckman vs. Frost, 18 Johns. 560.

So Woodworth, J. in the same case, says: “On looking into precedents, it will be found that no fact is better established, than that the plaintiff,, who seeks redemption, must aver, that ‘ he is ready to pay what is due for principle and interest on the mortgage.’ It cam require no argument to prove, that this is indispensable. How can the Chancellor decree a redemption without payment of what is due? It would be nugatory to make su(;k a decree, unless the plaintiff makes an offer of pay-

Any deed, or o-therwnting,how ever absolute upon its face —if given in fact to secure a usurious loan, may be im peached by parol proof.

The practice in this country, upon a bill to redeem, does not require a formal tender of the mo ney before suit, nor that it should be brought into court: an ofFer in the bill, to pay the money due, jg sufljoient; as the court will take care that the defend’t gets his money before he is divested ot his title or security'

On a bill to redeem, further time for payment is not given. Brinckerhoff vs. Lansing, 4 Johns. Ch. R., 76.— Novosielski vs. Wakefield, 17 Vesey, 417.

The Chancellor in the former case said: “ The plaintiffs, who are owners of the equity of redemption, are, no doubt, entitled to redeem, but they are not entitled to delay. A motion to enlarge time for payment upon a bill to redeem, is new, and such a motion was refused by Lord Eldon, 17 Vesey, 417, where he observed that, in the bill to redeem, the plaintiff professes that his money is ready. He comes into Court, saying, ‘ here is the money — give me my estate.’ If then, the bill, in the present case, be viewed as a bill to redeem, the plaintiff must redeem forthwith.”

A re-hearing is respectfully asked.

J. T. Morehead.

Additional Opinion — ■

October 25.

Delivered by

Judge Ewing

in response to the petition.

In response to the petition of the learned counsel, it is sufficient barely to remark — first, that the cases cited do not apply. It is competent to impeach by parol proof, any deed, bond, bill, or other instrument, however absolute on its face, given to secure a usurious loan of money. And if such instruments could not be impeached by such testimony, the statute on that subject would be a dead letter, as such instruments would always be exacted by the lender, when usurious interest was reserved. Second. The bill proffers to re-pay the money borrowed and legal interest, which re-payment the Circuit Court is required, by the opinion, to exact of the complainant, as a precedent condition to his right to relief.

A payment of the money in Court, is not required by the practice in this country. Nor would a formal tender of the money to the defendant, before suit brought, be required, as he claimed the property absolutely, and resisted all right of redemption. A tender, from the defence set up, would have been an useless act in this . n . i . t i r i i u case, if even in any case such lender beforehand could be required.

Wherefore, the opinion hitherto delivered in this case, must stand unaltered.  