
    John Miller v. Benjamin Kerr.
    Columbia,
    May, 1828
    Titles to land in fee-simple executed,- in consideration of a debt due by bond, and accepted by the obligee, operate as a discharge of the debt and an extinguishment of the bond; and this, notwithstanding an agreement in writing to reconvey the land, upon the payment of the sum of money expressed in the conveyance to be (he consideration thereof, which sum was the aggregate of the original debt and an usurious interest thereon.
    The Court will not declare a contract usurious and void in favour of him for whose gain the usury was intended, for the purpose of restoring him to rights surrendered in consideration of such usurious contract.
    Tried before Mr. Justice James, at York, Fall Term, 1827.
    This was an action of debt on bond. The bond had been executed in favour of W. E. Hayne, and had been assigned by him to the plaintiff. The defence relied on was payment. The facts were these : The plaintiff agreed to indulge the defendant for two yeai-s, on condition that he would pay interest at the rate of 14, instead of 7 per cent, per annum. The defendant executed titles in fee-simple to the plaintiff for two tracts of land, to secure payment; and the plaintiff entered into a written stipulation to reconvey the land to the defendant, if the latter would, within two years, pay the amount of the consideration expressed in the conveyance, being the original debt and usurious interest, and also a certain rent reserved as a substitute for the interest thereon. The plaintiff refused to surrender the original bond, and the defendant declined giving possession of the land; whereupon this action was brought.
    For the plaintiff it was contended, that the whole transaction relative to the transfer of the land, was usurious and void, and in no way affected the original bond. And of this opinion, was his Honor, the presiding Judge. The jury, however, found for the defendant.
    The plaintiff appealed, and moved for a new trial, on the grounds—
    1st. That the consideration of the bond not being impeached, the plaintiff was entitled to a verdict.
    2d. That the evidence offered by the defendant formed no de-fence, and that the jury were so charged by the Court, and ought to have found for the plaintiff.
    Williams, for the motion,
    cited Motte v. Dorrell, 1 McC. 350.
    Clendenin, contra,
    
    urged that the conveyance of the land
    was accepted in satisfaction of the bond debt; and whether or no that conveyance was rendered void by the usury with which the transaction was tainted, was a question which could not be raised by the plaintiff. It was for the defendant alone to take advantage of it.
   Johnson, J.

delivered the opinion of the Court. The facts proved, establish that the titles to the land were executed in consideration of the original debt, and being accepted by the plaintiff, they amounted to a satisfaction. It was not the substitution of one executory contract for another; but a legal transfer of property in payment of a debt.

But it is urged for the plaintiff, that the consideration expressed in the deed, being in part usurious, the deed itself is void ;and tlie plaintiff’s right to recover upon the original bond is, there-F . J3 1 S lore, ummpeached.

It is a clear and long established rule of law, that no one can take advantage of Ms own wrong. He who violates a law, comes with a bad grace to ask to be restored to rights, which he had surrendered or lost by his illegal act. And for this reason, he who pays money on an illegal consideration, cannot maintain an action to recover it back. And what is the case here ?

The defendant was indebted to the plaintiff by bond: the! plaintiff accepted lands in payment; and he now asks to be released from this last contract, and to be restored to his rights on the bond, upon the ground that knowingly and wilfully, and in violation of the statute against usury, (if, indeed, the transaction be usurious) he had cancelled the debt due upon the bond. According to the rule he cannot be permitted to do so.

There is another view of this case. Suppose the plaintiff recovers here ; would it be a bar to his right to recover the lands conveyed, in an action of trespass to try titles 1 I tMnk not. The debt due on the bond was prior, in point of time, to the conveyance, and giving to the defeasance executed by the plaintiff to reconvey, its full effect; the sum expresssed in the consideration of the deed, and not the bond, is the sum secured by it, and short of this the plaintiff is not bound to accept. '

Again. It will be perceived that it is not the defendant who asks that his deed shall be avoided. For any thing that the Court can know, until he is put to plead the matter, he may believe that Ms lands were well sold for the amount due on the bond. He is not bound to avail himself of the statute against usury; and he may feel himself in conscience bound to perform Ms contract, although it may be tinctured with usury, and unequal in its operation; and the Court cannot be informed whether he will or not, until he is put to plead it in some form or other. He does not in this case, nor does the occasion call for it. The Court of Law has no power to put him upon his election, and can only administer to him his legal rights.

Motion refused.  