Crippin v. Heermance

There can be no doubt that in contracts for the sale of lands, time or the terms of payment is of the essence of the contract as well as the price to be paid. In this case the original contract of sale was for prompt pay.. This consideration might have well entered into the contemplation of the' vendors in making their terms of sale, and they may reasonably be presumed to have charged a less price in consequence of such ready pay as would meet their plans. For their disappointment in the first failure they were paid according to agreement, and the performance was mutually postponed until 1st April, thereafter. If there had-*135been a clause in the contract, making it void for non fulfilment of its conditions, there is no doubt the vendors might have forfeited it either in October, 1836, or in April, 1837, upon failure by the purchaser. But its fulfilment was postponed from time to time ; and it does not clearly appear either from the pleadings or proofs, that the last postponement was to a day certain, but the inference rather is, that the postponement was to an indefinite but short time. The witness Ward, speaks of “a few days less than a weekand it seems to be understood that the balance was to be paid in a short time, not to exceed a week from 1st May, 1837. It does not appear either, that the contract contained any provision for rendering it void upon non-performance.

The defence set up, however, is usury. This is a defence which consists in intention to take more than 7 per cent, for the loan or forbearance of payment of money. Courts will look through all the shifts and devices of a transaction, to see if in them all they can discover an intention, lurking at bottom, to evade the statute ; and if they can perceive such an intention, whatever the shift or device maybe, they will lay their hand upon the transaction and declare it void. But if the intention is clearly other and different, courts will look upon the transaction with different eyes, even though more than 7 per cent, was reserved.

The whole testimony in this case leaves upon my mind very little doubt what the views of the parties were, in making the last negotiation. The complainant evidently supposed that the whole contract was void or had become forfeited by the non-payment of the balance, and intended to make his advantage *136of it. The defendant as evidently feared that such might be the result; and, not having the money to pay them so soon, determined to secure the title to the land, even though he should have to pay an excess over the contract price. It is not possible for me to say whether the contract was void or not, and liable to be forfeited for non-payment. It is my impression that it was not subject to such speedy forfeiture ; but the parties evidently acted under .the mutual belief or fear that it was so liable to be forfeited, and in that spirit they made the contract for the payment of the amount specified in the mortgage. The complainant may have taken an unconscientious advantage of the situation of the defendant, but he has chosen to rest his defence on the ground of usury alone, and the proofs do not seem to me to sustain that defence.

There must be a decree in favor of the complainant, for the full amount of the mortgage, and the ordinary reference to a Master to compute the amount due upon the bond and mortgage.