
    *Marks v. Morris.
    March, 1812.
    a. Deeds of Trust — Usury—Equitable Relief. — Where a bill in equity is filed to stay proceeding's upon a usurious deed of trust, on the ground that the complainant had no opportunity at law to plead the usury, and prays for no discovery, but, on the contrar3r, is ready to prove the fact, the court ought not to grant him relief against the usury, upon the condition of his paying the principal sum of money, (without interest,) but should altogether enjoin the trustee from selling, until, by some proper proceeding to be instituted by the cestuy que trust, he establish the validity of his contract; in which case, the injunction should be dissolved: and, in the contrary event, perpetuated.
    2. Same — Same—Same.—Upon the result of such proceeding, if the injunction be dissolved, the deed (being then cleansed of its usurious taint, by the judgment of a competent tribunal) should be enforced as a security to compel the payment of the debt.
    The decision of this case in the court of appeals, by which the decree of the superior court of chancery, for the Richmond district, (reported in 4 H. & M. 463 — 470,) was reversed, has settled a principle so important, that it is here inserted, without regard to chronological order. It is also proper to mention that, in the following statement, an error, committed in the former report of the case, in stating the bill to have been for a discovery, is corrected.
    Solomon Harks filed his bill, in the superior court of chancery, for the Richmond district, against Simpson Morris and Charles Copland, to be relieved against a usurious contract, covered by two deeds of trust; praying an injunction to inhibit Copland, the trustee, from selling the property thereby conveyed ; and a rescission of the contract by a decree of the court; or such other relief as might be deemed just and equitable, and the nature and merits of the case might justify. The bill (setting forth, particularly, the circumstances of the contract) stated, moreover, that Hyman Marks, a witness, was privy to the whole transaction, and that, by his testimony, the usury could be established. The defendants were called upon, in the usual form, “to make full, true, and perfect answer to the premises, as fully as if the same were again particularly set forth and expressed.’’
    The answer of Simpson Morris, the ces-tui que trust, neither admitted nor positively denied the usury, which, however, was clearly proved by the testimony in the cause.
    The chancellor’s decree gave the plaintiff relief against all but so much of the principal money as appeared to be due ; and allowed him all costs ; directing', in case the said balance of the principal should not be paid on or before a certain day, the injunction, for so much, should *stand dissolved as an act of the day when the
    decree was rendered ; that the deeds remain as a security for the same ; and that Charles Copland be appointed a commissioner to proceed, agreeably to the terms of the deeds, to raise the amount thereof, and to report his proceedings to the court in order to a final decree.
    From this decree the plaintiff prayed an appeal, which the chancellor allowed.
    The cause was argued, on Wednesday the 11th, and Thursday the 12th of March, 1812, by Hay, for the appellant, and Williams and Wirt, for the appellee.
    
      
       Deedsof Trust — Usury—Equitable Relief. — The principles involved in Marks v. Morris were for many years the subject of judicial discussion, and gavt rise — says one case (Davis v. Demming, 12 W. Va. 253) — to a controversy which lasted forty years, and which is perhaps the most remarkable to be found in the reports for the diversity of the opinions of the judges and the pertinacity and obstinacy with which some of the judges adhered to their opinions.
      Much fault has been found with the decision in Marks v. Morris, and it has, from time to time, been questioned, distinguished, shaken, or confirmed, and at length overruled. But, later the principles laid down therein were — according to certain cases — adopted by legislative enactment. No attempt will be made at this point to go into a complete discussion of the cases citing the principal case, showing the decisions therein and their effect on the principal case; forit is deemed unnecessary, since in the case of Davis v. Demming, 12 W. Va. 246, Judge Green, who delivered the opinion of the court, in construing §§ 7 .and 10, ch. 141. Code of Va. 1800, took occasion to make a thorough examination of the state of the law of Virginia on the subject of equitable relief to a usurious deed of trust. In this examination, he reviews the decision in the principal case and devotes perhaps twenty pages to settingforth the effect of subsequentVirginia decisions thereon.
      At this point, therefore, the cases citing the principal case will be collected, and their effect thereon shown only in a cursory manner; and reference is made to the case of Davis v. Demming, 12 W. Va. 246, for a more complete history and discussion of the principal case.
      In McPherrin v. King, 1 Rand. 172, the judges were the same that decided the principal case. Judge Coalter thought the case of Marks v. Morris was one of peculiar nature and could be sustained only if confined to deeds of trust, or “new fangled judgments” as he termed them. Judge Brooke thought the case at bar could be distinguished from the principal case. Judge Roane referred several tiip.es to the principal case (pp. 182,183,189,190) and said his impression was that in deciding it, the clear opinion of the court was that no part of the sum borrowed was to be paid as the price of relief except the plaintiff brought himself within the provision of the third section of the act of usury, and that this opinion was not abandoned by stating and relying, in the decision of the court, upon the perhaps stronger case of a deed of trust which, was the case then before the court.
      In Young v. Scott, 4 Rand. 421, Judge Green, to a certain extent reviewed the decision in the principal case; but Judge Cabell thoughtit unnecessary for the decision of the case then under discussion, that any of the principles in Maries v. Morris should be reviewed and he refrained from so doing.
      In Martin v. Lindsay, 1 Leigh 499, the case was exactly that of Marks v. Morris and brought under review the correctness of the decision therein. Judge Carr, after stating the decision in Marks v. Morris, proceeded at some length to review this case and the two cases above cited and says (p. 502): "I have stated these cases (i.e., McPherrin v. King and Young v. Scott) to show the exact situation of the subject. They clearly evince that Marks r. Morris has long been considered an open case, and the measure of relief in cases of usury a question wholly unsettled. * * * I shall however, give as briefly as I can, my view of the case of Marks v. Morris.” After devoting some ten pages to the subject he concludes: “Upon the whole, I am firmly convinced that Marks v. Morris is not law either taken generally, or restricted in its application to deeds of trust.” Judge Brooke reviewed very briefly the case of Marks v. Morris. and, setting forth its scope and purpose, adheres to it. Judges Coalter and Cabell concurred with Judge Brooke.
      In Fitzhugh v. Gordon, 2 Leigh 626, 627, 628, 629, the principles involved in Marks v. Morris were again reviewed and the court, four judges sitting, was equally divided.
      In Turpin v. Povall, 8 Leigh 93, Judge Brocken
      
        BROUGH said: “Does the rule adopted in the case of Marks v. Morris, 2 Munf. 407, apply to this case? 1 will in the first place remark that the decision in that case, however much it may have been objected to, is now too firmly established to be shaken. It has received the sanction of this court in Martin v. Lindsay, 1 Leigh 499, and in Fitzhugh v. Gordon, 2 Leigh 626. Let us then endeavor to understand the extent of that decision.” Judges Tucker and Cabell approved the decision of Marks v. Morris.
      
      In Thornton v. Gordon. 2 Rob. 727, 728, and Bank of washington v. Arthur, 3 Gratt. 173, 184, 185, the principal case is distinguished. But. in this last case Judge Brooke, in a dissenting opinion, thought the case under discussion came within the influence of Marksii. Morris, and said: "The case of Marks v. Morris has been understood as the law in cases similar for more .than twenty-five years, by bar and bench, and by many members of the legislature, and never objected to that I know of; and, if overruled, would repeal the act against usury, in all cases of deeds of trust; to subject which to a trial at law, was the object of that decision.”
      The principal case was also cited in Gillian v. Clay, 3 Leigh 596; Wise v. Lamb, 9 Gratt, 306; Bank of Washington v. Hupp, 10 Gratt. 61, 62.
      In Brockenbrough v. Spindle, 17 Gratt. 21, 25, Judge Monoure, delivering the opinion of the court, said that the tenth section of chapter 141, Code of Va. 1860, authorizing a debtor by bill requiring no discovery of the defendant to pray an injunction to prevent the sale of property conveyed to secure the payment of money or other thing, borrowed at usurious interest, etc., was designed to adopt the principle of the case of Marks v. Morris, which had been overruled by the Bank of Washington v. Arthur, 3 Gratt. 173, and Bell v. Calhoun, 8 Gratt. 22. In Belton v. Apperson. 26 Gratt. 218, 219, 220, and Turner v. Turner, 80 Va. 382, it is also stated that the “doctrine of Marks v. Morris” was adopted by statutory enactment and thus became the law of the state not to be questioned'by the courts.
      But, in Davis v. Demming, 12 W. Va. 280, Judge Green said; “I cannot believe that it was the purpose of the legislature in adopting this 10th section, to open again the almost endless controversies about what were the principles involved in the case of Marks v. Morris, or that they intended this section to apply to any case, except that of a usurious debt secured by a deed of trust; such is the plain meaning of its language; and such, I think, was obviously its purpose.”
      See further, monographic note on “Deeds of Trust” appended to Cadwallader v. Mason, Wythe 188; monographic note on “Usury” appended to Coffman v. Miller, 26 Gratt. 698.
    
   Monday, November 16th, (in the absence

of the President,)

JUDGE ROANE

pronounced the following opinion of the court,

consisting of Judges, ROANE, BROOKE and COAETER.

This is a bill brought by the appellant, praying t-hat the trustee in certain deeds of trust constituted may be stayed from selling the property therein conveyed; and that (on the ground of usury) the said deeds may be decreed to be cancelled ; and for general relief.

Although that bill, after setting out the particulars of the usurious contract, calls, upon the defendant to answer the same, in the usual way, we, nevertheless, infer, that it is not such a bill for discovery and relief, as is contemplated in the third section of the act of usury. We infer this, not only because it omits to proffer to pay the principal money loaned by the appellee to the appellant, and to pray that the notes, given for the usurious consideration, may also be decreed to be given up and cancelled ; but also, because the appellant (so far from averring therein that he stood in need of a discovery of the usury from the appellee) avers, on the contrary, that he could prove the same by a particular witness whom he names.

*The particular mischief intended to-be remedied by that section of the act was that, as usurious contracts were frequently made in secret, there might often be a defect of evidence to detect them, in the ordinary course ; it therefore authorizes a discovery in such case, from the conscience of the defendant, on the conditions prescribed by the act. This construction, which plainly results from the section itself now in question, is made more clear, by referring to its prototype, the fifth section of the act of 1748, upon the same subject; in the preamble to-which the foregoing is expressly stated to be the mischief intended to be remedied. But this section, being adapted to a limited and specified case, does not interfere with, nor affect the general and ulterior jurisdiction of, the courts of equity, antecedently existing on the subject.

For example, it does not extend to, nor impose any conditions on, a party applying to a court of equity to perpetuate his testimony, touching a'question of usury; (as is seen in the case of The Earl of Suffolk v. Green, 1 Atk. 450,) nor to the case of an application to a court of equity to relieve against a judgment at law, obtained by surprise, or accident, in a case of usury. In such case the mode of relief would he by granting' a new trial, in which the whole contract might he vacated; and not, by subjecting the plaintiff to pay the principal sum, repeal the statute of usury, pro tanto, merely because he found it necessary to come into a court of equity, to be relieved against the accident. So, in the case before us, of this new species of judgment bonds, (if we may use the expression,) of these- modern shifts and contrivances to evade, not only the statute of usury, but also the jurisdiction, at least, of the courts of law, and which, therefore, render the interposition of the courts of equity peculiarly necessary ; in this case of an application, to a court of equity, to stay the hand of the trustee, until the validity of the contract can be inquired into in a court of law, by a plaintiff who wants no favour, or discovery from *the defendant", but is even full-handed as to evidence to prove the usury in a court of law; neither the spirit or meaning of the act extends to impose on the plaintiff the loss of his principal sum due under the usurious contract. While such a construction would, as to that extent, operate a repeal of the statute of usury, in all cases whatsoever, secured by deeds of trust, as now prac-tised upon and understood; the construction under which we now act does not go one jot further than the case last put, of relieving against a judgment obtained by surprise in a case of usury. In both cases, the aid of a court of equity is afforded, to enable the court of law to annul the usurious contract altogether ; with this strong feature in favour of the case now before us, that the plaintiff has never before had an opportunity to do it.

The interference of a court of equity, in such case, so far as to permit an inquiry, by a court of law, into the validity of the contract, is not such a mighty boon as ought to subject the plaintiff to the loss of his principal sum. It is a power which is even exercised by the courts of law ; as is seen in the case of Cooke v. Jones, Cowp. 727. In that case, a judgment had been entered up upon a warrant of attorney, and a scire facias was depending to revive and enforce the same. On a suggestion, that the consideration of the judgment was usurious, the court of king’s bench stayed the proceedings, upon the scire facias, and directed an issue to try the validity of the contract on which the judgment was founded, on the ground (which most emphatically applies to the case before us) that the defendant “had had no opportunity to plead the statute of usury, and was, therefore, without relief, but by the interposition of the court.”

If this power was rightfully exercised, without condition, by a court of law, in relation to a judgment passing at its own bar, and in some sense receiving the sanction and ratification of the court, it ought, a fortiori, to be *exercised in like manner by a court of equity, in relation to a transaction, passing, in pais, suggested to be tainted with usury, and presented in a form calculated to elude every other jurisdiction, save the usual and salutary jurisdiction of such court. When an usurious contract is to be enforced by a mode defying the power of the other tribunals of justice, a court of equity will be neither tardy, nor rigorous, in extending its aid to prevent it.

The result of the foregoing observations, as applied to the case before us, is that, as the ’case made by the bill is not that embraced by the third section of the act for suppression of usury; as the appellant wanted no discovery from the appellee, but only found it necessary to apply to the court of equity to stay the trustee from selling, until the question of usury should be inquired into, before some competent tribunal; the chancellor ought not to have imposed on him the loss of the principal sum, but he should have enjoined the trustee from selling, until, by some proper proceeding, to be instituted by the appellee, he should establish the validity of his contract: in which case the injunction should be dissolved ; and in the contrary event, perpetuated: in the former case, also, the deeds (being then cleansed of their usurious taint by the judgment of a competent tribunal) should undoubtedly be held as a security to insure the payment of the money.

On these grounds, we are unanimously of opinion that the decree should be reversed, with costs, and the cause remanded to the court of chancery for the Richmond district to be finally proceeded in, pursuant to the principles now declared.  