A, filed a bill in the circuit court for an injunction to
prevent the sale of property by a trustee to whom it had been
conveyed to secure the payment of a sum of money borrowed by him at
usurious interest. The money borrowed had not been repaid, and the
bill sought no discovery of the usury from the defendant, but
averred that the complainant would be able to prove it by competent
testimony. The circuit court dismissed the bill.
Held that
the decree of the circuit court was correct.
This is substantially an application for relief from usury, and
the consequence of granting the injunction would be relief upon
terms at variance with the rule of equity, so fully recognized at
this term of the Court in the case of
Brown v. Swann, that
he who seeks the aid of equity to be delivered from usury must do
equity by paying the principal and legal interest upon the money
borrowed. The complainant does not offer to do so in this bill.
This is essential to every such application in a court of equity,
first to give the court jurisdiction and to enable the chancellor,
if he thinks proper to do so, to require the payment of principal
and interest before the hearing of the cause. The relief sought in
such cases is an exemption from the illegal usury. The whole
inquiry on the hearing is to establish that fact and to give relief
to that extent. Whenever a complainant does not comply with the
rule by averring in his bill his readiness or willingness to pay
principal and interest, he can have no standing in a court of
equity.
This was a bill filed in the circuit court by the appellant
against the executors of James Walker praying for an injunction on
a trustee to prevent his proceeding to sell certain real estate
conveyed to him to secure the payment of a sum of money loaned to
the complainant, and for relief against an alleged usurious
contract.
The circuit court dismissed the bill.
MR. JUSTICE WAYNE delivered the opinion of the Court.
Page 35 U. S. 522
The complainant alleges that he borrowed a sum of money from
James Walker, at usurious interest and that to secure the payment
of it he executed a deed of trust upon his house and lot in
Washington to the defendant, James Rhodes, in which he covenanted,
if default should be made in the repayment of the loan at the
stipulated time, that the trustee, Rhodes, shall, upon the request
of said James Walker or his executors, administrators, or assigns
sell the premises to the highest bidder and convey the same to a
purchaser in fee simple, notice of the sale being given, of the
time of sale, in the way mentioned in the deed of trust. He further
complains that the executors of Walker have directed Rhodes to
proceed to a sale of the house and lot, that he had advertised them
for sale, and he admits that he had not repaid the money borrowed.
The complainant seeks no discovery of the usury from the defendant,
but avers that he will be able to prove it by competent testimony,
and waives all penalties to which he may be entitled to arise out
of this transaction. He prays for an injunction to prevent the sale
of the property by the trustee until the question of usury shall be
decided at law, but does not ask the court to aid in any way as
auxiliary to any case pending at law.
This, then, is substantially an application for relief from
usury, and the consequence of granting the injunction would be
relief upon terms at variance with the rule of equity, so fully
recognized at this term of the Court in the case of
Brown v.
Swann -- that he who seeks the aid of equity to be relieved
from usury must do equity by paying the principal and legal
interest upon the money borrowed. The complainant does not offer to
do so in his bill. This is essential to every such application in a
court of equity, first to give the court jurisdiction and to enable
the chancellor, if he thinks proper to do so, to require the
payment of principal and interest before the hearing of the cause.
The relief sought in such cases is an exemption from the illegal
usury. The whole inquiry on the hearing is to establish that fact
and to give relief to that extent. Whenever, then, a complainant
does not comply with the rule by averring in his bill his readiness
or willingness to pay principal and interest, he can have no
standing in a court of equity.
The decree of the circuit court is
Affirmed.
This cause came on to be heard on the transcript of the
record
Page 35 U. S. 523
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington, and was argued
by counsel, on consideration whereof it is decreed and ordered by
this Court that the decree of the said circuit court in this cause
be and the same is hereby affirmed with costs.
