Rockwell v. Hobby.

Eldon says, "it has been so long settled that a mere deposit of deeds, withot a single word passing, operates as an equitable mortgage, that whatever I might have thought originally, I must act upon that as settled law."

In the case before me, the deed went into the possession of the testator for some purpose. None is specifically proved; but there is an advance of money proved, an advance which went to discharge a mortgage given in truth for a part of the purchase money of the land described in that deed. The only inference is, that the deed was deposited as security for the advance.

In connection with the expression before adverted to, in Mr. Mead's note to Mr. Grim, it may be that the deed was left as security, while the advances were making from time to time, and with the expectation that when they were completed, and Barker paid off, the mortgage would be assigned. In this view the lien would be equally operative. The cases of Wright, Ex parte, 19 Ves. 258, per Lord Eldon, and lockley v. Bantock, 1 Russell, 141, 145, show that an agreement to give a mortgage and delivery of the title deeds for the purpose of carrying it into effect, constitute a mortgage in equity, as against the person making the agreement.

The testimony of Dusenbury confirms the supposition that there was either an agreement that the mortgage should be assigned, which Mrs. Hobby supposed had been carried into effect, or an agreement that the deed should remain in the testator's hands as security. He testifies that she said she was willing the executrix should have the land, but she would rather the sale of it would be postponed until her youngest child became of age, and then the whole property could be sold to better advantage by being sold together. The evidence is that the land in question was bought by her to add to land which she previously owned. The conversation could not have referred to the testator's interest or that of his family, in the latter property, because it conceded the claim of the executrix to have the whole of the land spoken of. And as there is no other right or claim discoverable from the evidence, except that arising from the testator's advances to pay off the mortgage, the conversation must have referred to that subject. Upon the whole, my conclusion is that

Rowe v. Phillips.

the advances were made upon the security of the property, and that the testator had an equitable lien for the amount. If the deed were deposited as security the lien is direct; and if there were an agreement to have the mortgage assigned, equity will treat it as having been done, in order to give it effect.

In either view, the statute of limitations is not applicable, and I need not examine whether the Revised Statutes apply to equitable demands existing when they went into operation.

There must be a decree for a sale of the premises, for the payment of the testator's advances with interest, and the complainants' costs.

ROWE v. PHILLIPS.

In an answer in equity, as well as in a plea in a suit at law founded upon a specialty, where the defence is usury, the terms of the agreement, and the quantum or rate of the usurious premium or interest, must be stated specifically; and the proof must come up to the statement in the pleading.

Proof of the plaintiff's admission that he had taken usury, will not support a plea setting forth a particular sum or rate per cent; nor will proof that he exacted a certain rate per cent sustain a plea alleging the taking of a sum in gross which does not correspond with the rate proved.

Where the answer charged that the mortgagee exacted $112 50 for usury; and the testimony consisted of his admissions, that he had taken usury in the mortgage, also that the mortgagors paid him more than seven per cent, and that they paid him ten or twelve per cent; neither of which rates would produce the sum named; held that the proof did not support the answer.

Albany, January 18, 1844.

THE bill in this cause was filed to foreclose a mortgage for $2900, executed by Edmund and William Phillips to the complainant, on the first day of September, 1840.

The defence set up by the mortgagors was that the mortgage was usurious. They filed a cross-bill to obtain a discovery of the facts alleged in their answer, but the answer of the mortgagee denied the allegations. The original and cross-suits were heard together, and so far as the pleadings and testimony were material to the points reported, they appear in the judgment of the court.

Rowe v. Phillips.

K. Miller and S. Stevens, for the complainant.

H. Hogeboom, for the defendants.

THE ASSISTANT VICE-CHANCELLOR.-The answer in the original suit alleges that "the bond and mortgage are illegal and void; that the same are usurious; and particularly and especially that the complainant Rowe, in stating and making up the pretended consideration thereof, included in such statement and computation, an item of $112 50, pretended to be for that amount of cash furnished to the defendants or with which they were chargeable, by the complainant, on the day of the date of the mortgage." The answer further alleges that "the said item is wholly fictitious and unfounded, and was inserted as a part of the consideration of said bond and mortgage by way of usury." And the allegation is subsequently repeated that the "bond and mortgage are void for usury."

The cross bill contains substantially the same charges, simplified as to the item of $112 50, but containing no other specific charge of usury.

The general averment that the bond and mortgage are usurious, that they are void, &c., is unavailing. This defence cannot be proved under such an averment. In equity, as well as in a suit at law founded upon a specialty, the terms of the usurious contract, and the quantum of the usurious premium or interest, must be specified and set out distinctly, in the plea or answer; and the proof must come up to the statement in the pleading. (Vroom v. Ditmars, 4 Paige's R. 526, 533; New Orleans Gas Light and Banking Company v. Dudley, 8 ibid. 452, 458; Crenshaw's Admin'r v. Clark, 5 Leigh's Rep. (Va.) 69; Smith v. Nicholas, 8 ibid. 330.)

The defence to this bond and mortgage is therefore limited to establishing the usurious item of $112 50.

The only witness who testifies in regard to this sum, is Mr. Esselstyne, the solicitor who prepared the bond and mortgage, and he says that in making up the statement of the sum for which the securities were to be given, the $112 50 was inserted on an allegation of Rowe, that he had lent that amount to William

Rowe v. Phillips.

Phillips in two or three sums, for which he had no note. William Phillips was not present, when the statement was prepared. Mr. Esselstyne says he asked Edward Phillips if the charge was right, but he did not seem to know whether it was or not; Rowe explained it to Edward, who then said he presumed it was right, although he did not know, it was a transaction between William and Rowe. Upon this Mr. Esselstyne entered the amount on the statement; and this is all that he knows on the subject. The evidence, so far, proves nothing against the justice of the $112 50.

Other witnesses prove that Rowe said he had taken usury, or that there was usury in the mortgage; that the Phillips's paid him more than seven per cent; that they paid him ten, or twelve per cent interest; and as one witness says, five per cent, premium. Another witness speaks of a sum of ten dollars usury in a note of $150, which went into the bond and mortgage.

It is not perhaps usual for usurers to make admissions, but one cannot on the testimony in this case, resist the conclusion that there was usury in the bond and mortgage.

The insuperable difficulty in the case is, that the proof does not support the usury set up in the answer. No one of the rates per cent mentioned by the witnesses, will produce an amount of usury corresponding with the $112 50, even if it were assumed that the per centage spoken of was included in the bond and mortgage, as to which the testimony is quite obscure. Then proof of declarations that there was usury, that he had taken ten per cent, twelve per cent, &c., is not evidence that Rowe had included this $112 50, in the mortgage. A general admission of taking usury, will not support a plea of a particular sum or rate per cent stated as constituting the usury; any more than proof of the admission of a party that he owed the plaintiff, would support a claim for any sum that the plaintiff might choose to insert in his declaration or bill of particulars.

The defence cannot be maintained on this evidence.

I have not alluded to the cross bill on this point, because Rowe was required to answer it on oath, and he has fully denied the alleged usury; thus making the case of the mortgagors much more difficult than it was upon the original bill and answer.

Harder v. Harder.

The cross bill will have to be dismissed with costs; and in the original suit the complainant is entitled to the usual decree.

M. J. HARDER and others v. J. J. HARDER and others.

A parol agreement, to leave lands to a person by will, though founded on a precedent valuable consideration, cannot be enforced in equity.

A resulting trust may be proved against persons claiming by descent, by parol admissions of the ancestor.

The intestate, in 1802, bought a farm, which was conveyed to him in fee, he giving a mortgage for the purchase money. He resided upon it until his death in 1835; but it was paid for out of the labor and earnings of his four younger sons. Held, that such payment raised a resulting trust in their favor, and that they were entitled to the farm in equity.

The youngest son, R. being the owner of ten acres of land, the intestate agreed with him by parol that if he would convey the same to his three brothers, he should have a small farm which the intestate owned in another town. R. conveyed the ten acres accordingly, went into possession of the small farm, and made permanent improvements upon it: Held, that the agreement was so far performed as to bind the intestate and his heirs.

Where the complainants have a legal title to a part of the lands as to which they ask relief against an ejectment, their bill as to such part, will be dismissed. An objection to the bill for the misjoinder of complainants, will not be regarded, when it is raised for the first time at the final hearing of the cause.

Albany, January, 1844.

THE bill in this cause was filed to have the titles of the respective complainants in lands near the city of Hudson, declared and established; and to restrain certain actions of ejectment brought by the defendants for their recovery. The facts are fully stated in the opinion of the court.

J. Gaul, Jr., for the complainants.

K. Miller, for the defendants.

THE ASSISTANT VICE-CHANCELLOR.-The leading facts in this case, as established by the testimony, are these. In 1802, John M. Harder, the father of the complainants, of John J. Harder