John McLean

“ The principle seems to be settled, that usurious securities are not only void, as between the original parties, but the illegality of their inception affects them even in the hands of third persons who are entire strangers to the transaction. Comyn on Usury, 169. A stranger must 'take heed to his assurance, at his peril;' and cannot insist on his ignorance of the contract, in support of his claim to recover upon a security which originated in usury. ”

“ The plaintiff in the replevin is not a party to this usurious contract. The defendant claims to make him liable to pay five hundred dollars, by distraining his goods and chattels found on the premises charged by the contract between him and Scholfield; he is therefore a stranger to the particulars of the agreement, and he puts in the plea of usury. Less certainty is required when the law presumes that the knowledge of the facts is particularly in the opposite party. ”

“ He is estopped by his purchase from so doing.
The law of usury is different in cases of personal and real property. The assignee of an equity of redemption cannot plead usury in the mortgage; and a purchaser under a mortgage is not affected by usury in the origin of the contract. 10 Wheat. 367. 10 Johns. Rep. 185. A mortgage upon an usurious consideration is void only against the mortgagor, and those who may lawfully hold the estate under him. A purchaser of the mere equity of redemption, cannot avoid the mortgage by plea or proof of usury. ”

“ To such a contract the obligation to repay the money is essential. Ord on Usury, 23. If the money may be returned or not, at pleasure, is it such a loan; and there must be a loan to make it usury. An option to return makes the transaction a purchase. These questions are exclusively proper for a jury, and the court cannot decide them.
This mode of investment is common in Alexandria. The purchase of a ground rent or rent charge is a usual mode of providing for families and children; and the usual price of such rents is ten years purchase.
The pleas are bad in form and substance. ”

“ The first question is, whether Lloyd can avail himself of this usury, if it existed?
He is bound by a contract with his vendor Scholfield; he is bound to pay this annuity to Moore, and it is important to Scholfield that he shall do so; as he, Scholfield, is under a personal contract to pay the same.
A deed is not void for usury; it is only voidable; as all deeds which take effect from delivery are not void ”

“ Henry, reported in 10 Johnson, 185, a plea of usury was set up to invalidate the title of a purchaser at a sale of mortgaged premises. This sale, under the statute of New York, is equivalent to a foreclosure by a decree in chancery; and the court decided, that the title of the purchaser was not affected by usury in the debt for which the mortgage was given. ”

“ The cognizance further states, that on the 29th of October 1816, the said Jonathan Scholfield, by his deed of bargain and sale, conveyed to Lloyd the plaintiff, for ever, certain tenements and lots of ground in the town of Alexandria, whereof the said four brick tenements and lot of ground were parcel, and subject to the rent charge stated. That Lloyd has been seised ever since and possessed of the same ”

“ It is not necessary to state in the pleadings, or that the jury should find them, that there was a corrupt agreement. It is sufficient if facts appear which in law amount to usury. Roberts vs. Tremayne, Cro. James, 508. 1 Call, 62. Price vs. Campbell, 2 Call, 119. The intention of the parties is a legal inference from established facts. 5 Randolph, 145 ,146 to 162. Whitworth vs. Adams, 5 Rand. 352, 560. 4 Mun. 66. 6 Cranch, 652.
The facts set forth by the deed, which forms a part of the pleas, according to the cases cited, show an usurious contract. ”

“ Rep. 69. Lawley vs. Hooper, 3 Alak. 278. Flayer vs. Sir Brownlaw Sherard, Ambler, 19. 3 Barn. & Ald. 664. 4 Camp. Rep. 1. Powel vs. Waters, 17 Johns. Rep. 176. 5 Randolph's Rep. 347. Barnard vs. Young, 17 Ves. ”