James Moore Wayne

“ No creditor has a right to take a blind assignment from his debtor upon the latter's anticipation of becoming interested in a particular fund to be realized thereafter, without making such inquiries as the occasion may require, and then to ask in equity for a priority in the payment of his debt merely from the precedency in date of his assignment over those who became subsequently assignees for part of the same fund for actual value given to the cestui que trust of the fund. ”

“ Nesbitt, [4] which may be thought to oppose our view, the party sought to vacate a judgment on the usurious debt. We do not desire to destroy any legal advantage obtained by these persons. It is they who seek to postpone our prior equity.
So far, therefore, as Wetmore, or, indeed, anybody else, sets up other assignments as entitled to priority over ours, they become actors, and the court must decide on priorities to the fund. ”

“ The payment of anything additional depends also upon a contingency, and not upon any happening of a certain event, which of itself would be deemed insufficient to make a loan usurious. No part of the paper, taken in connection with all the circumstances of the case, could be used as a predicate from which it could be affirmed that the commission to be allowed by Hamilton was an intentional device between himself and Mr. Corcoran to make the loan to the former usurious. ”

“ May with the secretary cannot be presumed to have been made known to Wetmore to affect his rights, as the legal holder and trustee of Hamilton, to the fund, or those of Robb & Co., or those of Hill, as it has not been presented and proved in the manner that the law requires all papers or documents to be, from either of the departments of the Government, before they can be received as testimony in courts of justice. ”

“ The debtor was, first, the State of Texas, and subsequently the United States. To both notice was given. Here were no laches, but on the contrary, in both cases, diligence. Even admitting Wetmore to hold a legal title, we deny that the subsequent assignees have a prior equity, unless Spain was guilty of laches in giving notice to Wetmore, after the former had knowledge where this legal title was; and this is not shown. A prior assignee is not postponed by a failure to give notice, unless guilty of fraud or of gross neglect. The subsequent assignee takes subject to the prior equities. ”

“ Mr. Spain neither asked for information to secure his own rights, or to protect the rights of others from such a result. And it was not made until some time after Mr. Wetmore had accepted Hamilton's draft in favor of Corcoran & Riggs, that Mr. Spain thought of giving a notice of any kind of his claim upon the fund. He then says in his bill, that to make his assignment effectual, and to fasten notice of it upon the government of Texas, that he had sent through the post-office at Galveston to the treasurer of Texas a copy of Hamilton's assignment to him, which appears to have been received. ”

“ It is our opinion that Wetmore, Corcoran & Riggs, and Hill are meritorious creditors of Hamilton, and that their claims upon the fund were acquired without notice or the possibility of their having had it, when they became the assignees of Hamilton, and that the complainant in this case has no priority of payment out of the fund in consequence of remissness in not having given notice of his claim as the assignee of Hamilton. ”

“ The interests of Wetmore, Corcoran & Riggs, and Hill in the fund, are valid and operative as assignments. To constitute an assignment of a debt or other chose in action, in equity, no particular form is necessary. ”

“ He has notice, at any rate, of our older claim, prior to his getting the money from the United States, and is bound to postpone himself.
As to Corcoran & Riggs, their claim is usurious on its face; and even supposing Spain to be postponed by their prior notice to Wetmore, he may drive them out entirely by the illegality of their loan. The right to object is not personal to the borrower. ”

“ So that, even at law, the imperative terms of the statute only make the usurious securities void, sub modo; the equitable rule being applied even by courts of law, whenever, consistently with technical reasons, it can be done. ”