Inhabitants of Reading v. Inhabitants of Weston

The first objection made assumes the broad ground, that as between the parties to the deed, usury is an inadmissible plea, because the deed is absolute.

Considering it as absolute, (whether it be so or not) I am of opinion, that the testimony was admissible as between the’parties ito the deed, notwithstanding the determination in Flint v. Sheldon, 13 Mass. Rep. 443. in a neighbouring state, to which I cannot subscribe.

The words of the statute prohibiting usury are very broad. *413The law invalidates not only “ all bonds and contracts” made for the payment of usury, but “ all mortgages and assurances.” An absolute deed is both a contract and an assurance ; (2 Bla. Comm. 294.) and therefore, is within the letter of the law. That it is within the object of it, is equally unquestionable-The act was made to prevent usurious oppression in every case, regardless of the face or form of a transaction, with whatever garb it may be clothed, and whatever device it may assume. Lowe v. Waller, Doug. 736. Jestons v. Brooke, Cowp. 793. 796, Massa v. Dauling, 2 Stra. 1243. Tate v. Wellings, 3 Term Rep. 521, 538. Rich v. Topping, 1 Esp. Rep. 176. Atkinson v. Scott, 1 Bay 303. Carter q. t. v. Brand, 1 Cam. & Nor. 28. 5 Rep. 69 b. Many evasions of the statute have been attempted ; but the courts have uniformly supported its spirit, by stripping off every disguise, however plausible or specious, and unveiling the corrupt transaction.

Absolute conveyances, both of land and personal property, have been invalidated on proof of usury. Bro. tit. Usury, pl. 1 Carter and Claycole’s case, 1 Leon. 307. Peterson’s case, Cro. Eliz. 104. Doe d. Davidson v. Barnard, 1 Esp. Rep. 11. And in v Preston, 5 Day 100. it was determined by this Court, that an absolute deed of land, made to secure an usurious loan, was void.

As between the parties, then, the tes,.. 3 be admissible ; but the plaintiffs, in this case, w* re n0t a Partl •

This raises the question, whether those who are no. ‘ p 3 to an usurious transaction, may be admitted to invalidáis' a deed, for the usury, with which such persons have not been, and could not be, oppressed.

It has been long and uniformly established law, that one not a party to an usurious contract, may not, for this cause, invalidate it. Whelpdale’s case, 5 Rep. 119. Bull. N. P. 224. Carter and Claycole’s case, 1 Leon. 307. Ord on Usury 105. 110. Bearce v. Barstow, 9 Mass. Rep. 45. Green v. Kemp 15 Mass. Rep. 515. The reason is extremely obvious. The’ law of usury was made to prevent oppression, and to rescue the party oppressed ; but it never was intended for the benefit of those, who are not, and cannot be, injured, by an usurious transaction. It falls within that class of statutes, in which, although a contract is declared to be utterly void, it is voidable only, at the election of the oppressed party. Lincoln College case, 3 Rep. 58. Whelpdale’s case, 5 Rep. 119. To actions *414of this sort applies the maxim, Quisquís potest renunciare juri ^r° ge in{r0c¿lic(0- In cases of small oppression, an individual, influenced by a principle of justice, or a nice sense of honour, may wa've the benefit of avoiding an usurious contract, as being utterly disproportioned to the meditated wrong. Why should he not be permitted to do it ? And on what good reason may a stranger to an usurious agreement be suffered to do what the party in interest may consider as incompatible with, honour and integrity ?

I think it extremely clear, that the evidence offered was inadmissible in behalf of the plaintiff s ; end for this cause, that a new trial ought to be advised,

New trial to be granted.