
    ENOCH H. CUNNINGHAM vs. WILLIAM W. DAVIS.
    A mortgagor, who has not paid the amount of the money loaned oh the mortgage and admitted to be due, nor brought it into Court, cannot enjoin the mortgagee from collecting the amount due, nor from recovering in ejectment the mortgaged premises, although the plaintiff alleges that the contract was usurious.
    Appeal from the Court of Equity of Buncombe County, at the Spring Term 1850, His Honor Judge Caldwell presiding.
    
      N. W. Wood-fin and J. W. Woodfin, for the plaintiff.
    
      J. Baxter, for the defendant.
   Pearson, J.

The case made by the bill is, that the plaintiff borrowed from the defendant the sum of $1000, for which he was to pay 10 per cent, annually by way of interest, and, to cover this usurious transaction, the title to certain lands which the plaintiff had bought, but had not paid for, was conveyed to the defendant; and the parties entered into a covenant, that the plaintiff was to lease the land, from year to year as long as he saw pro-peí-, at the annual rent of $100, and was to have the fee simple, whenever he paid the sum of $1000, together with the rent. The plaintiff paid the agreed sum for some five or six years, when he failed to pay, and the defendant bi’ought suit and recovered judgment for $233, the rent for two years and a third : and also brought an action of ejectment, upon which he has judgment, and he is about to sue out execution upon both the judgment for the $233 and the judgment in ejectment. The prayer is for an account, and for a conveyance in fee, upon the, payment of the sum of $1000 and six per cent, interest, deducting the sums already paid, and for an injunction, restraining the defendant from issuing execution, both upon the judgment for the $233, and upon the judgment in ejectment.

The defendant denies the case made by the bill, and avers, that the plaintiff, having bought the land and being unable to pay for it, he took it off of his hands, and advanced $1000, and took the title to himself as a pur, chaser, and agreed to lease the land to the plaintiff, at the annual rent of $100, and to make a title in fee to him at any time, when he paid the $1000, together with the said annual rent of $I0Q for the time he was in posses' sion ; and he declares a readiness still to convey the land to the plaintiff, upon the terms aforesaid.

It is unnecessary to consider the answer ; for we think that, according to the plaintiff’s own allegations, there is no error in the decretal order of the Court below, by which the injunction was dissolved. The plaintiff, by his own shewing, is a mortgagor, in arrear some six or seven hundred dollars, after allowing all credits ; and there is no ground, on which he can enjoin the collection of the judgment for the $2.33, or refuse to give up possession to the mortgagee, as he has not paid the balance of the money admitted to be due, nor brought it into Court.

This opinion will be certified to the Court below, and the plaintiff must pay the costs of this Court.

Per Curiam. Ordered and decreed accordingly.  