Usury. Quid.

concluded to say it was by duress; [for the ac-
ceptance of the defeazance is an admission that the
bond is the deed of the party.]

law. Co. 5. 70.

37 H. 8. chap. 9.
39 El. c. 18.
13 El. ch. 8.

21 Jac. ch. 17.

A deed also made upon or in pursuit and exe- Terms of the cution of an usurious contract, i. e. such a contract, as whereupon the lender is sure to have in oney, or monies worth, for the loan of the thing, above the principal, more than after the rate of 81. [now 5.] for the 100l. by the year, also is void. In which matter these cases are to be observed. If one 6 Decembris borrow 30l. until the second day of June next following, to pay then for it 337. for the principal loan, if the son of the obligee be then alive; and if he die before that time, that then he shall pay but 271. which is less than the principal; in this case the contract is usurious and corrupt, and therefore the deed that doth contain it, is void (41); for it is a mere shift.

Pasch. 7.

Jac. B. R.

If one borrow 1007. and for this mortgage land Corflet's case. above the value of 81. by the year, on condition that if the mortgagor pay the money at the year's end, that the estate shall cease; this is an usurious contract, and therefore the deed, whether it be a deed of feoffment, grant, or lease containing it, is void (42). [This point is over-ruled; for as he is accountable in equity for the profits, and there is not any express stipulation that he should retain them, such contract would not be deemed usurious.] So if I lend another man 10l. for a year, and take security, by statute or obligation, that the borrower pay me the lender 20l. for it; this contract is usurious, and therefore the statute and obligation void. But if the agreement and statute or obligation be, that if the borrower pay not the 107. within the year, that then he shall pay 20%. for it; this is no usury; and therefore in this case the deed is good. [Equity, however, would relieve from the bargain as against conscience. So that court would relieve against a previous stipulation to pay compound interest.] If one come to me to borrow 500l. of me, and tell me he is unable to pay it together, and therefore he desires he may pay it in twelve or thirteen years, and doth offer

(41) See accordingly the case of Reynolds v. Clayton. Mo. Rep. 397. S. C. in 2 And. 15, and further in Vin. Abr. Usury (G).

(42) This case seems to be upon the presumption that the mortgagee receives the whole Diofit of the mortgaged premises, or so much thereof as would exceed 81. per cent. per annum.

Curia Hil.

14 Jac. B. R.

Saunder's case.

Co. 5. 69.

therefore to give me for my kindness 2001. over
and above besides the use to let him have it so,
and then the 500l. the interest, and the 2007. is
cast together, and so we agree upon an annuity of
80%. per annum for fourteen years, which is assured
by conveyances unto me; in this case the contract
is usurious, and all the assurances made to perfect
it are void. [Hence the difference between an-
nuities granted for years and for lives: annuities
for lives are exempt from the laws of usury,
even though granted subject to be repurchased.
Annuities for years certain, though not necessarily
usurious, may, it is apprehended, be usurious, if
founded on a treaty for loan of money; see Co-
myn on Usury, p. 70. An annuity was agreed to
be granted, and was granted in fee, so as to yield
10l. per cent. per annum for the price. By the
most eminent lawyers of the day, it was advised,
that the transaction was not usurious; but it was
doubted whether equity would not treat the trans-
action as a mortgage, viz. redeemable on payment of
the price, and 57. per cent. interest.] And yet
regularly, where the principal money is lost, the con-
tract is not usurious, [as in the common and ordi-
nary case of the grant of an annuity, in which
there is not any loan, but merely the sale of an
annuity for a price; and though the seller has the
option of repurchasing the annuity, this option will
not make the transaction usurious, for this is an
option to him for his benefit. But a stipulation, oblig-
ing him to repurchase the annuity, would render the
transaction usurious.] If a man desire to borrow of
me 100l. for a year, and I am content to let him have
it for the use of 81. [the rate of interest being then
87.] but withal I compel him to take a lease of *P. 63.
me of a house at 60l. rent, which in truth is worth
but 30l. this contract is usurious, and therefore the
assurances thereupon made are void, [and equity
will, in cases not strictly usurious, relieve against
bargains to obtain leases connected with a loan of
money. Per Redesdale, Drew v. Porrer, 1 Sch. &
Lef. 182.] Et sic de similibus. But if a man
the 17th of July 1579, grant me a rent of 20 l. per
annum for the loan of 100l. to be paid every half-
year, and the first payment at Christmas 1580,
and it is agreed between us, that if he pay the
100l. the 17th of July 1580, that then the rent

Curia.

shall cease; this contract is not usurious; and
therefore the assurances, thereupon made, are not
void, but good, [because the party may relieve him-
self from the interest by payment of the principal
before the time.] But if in this case there be a
private or collateral agreement between us, that he
shall not pay the 1007. and redeem the rent, and
that clause be put in only to evade the statute,
then [there is a shift, and] the contract [is] usurious
notwithstanding, and the deeds and assurances
thereof void. Et sic de similibus. If one borrow
100l. after the rate of 81. per centum, and the Hill 7 Jac. B. R.
borrower do afterwards pay part of the principal,
and all the use, within the year; and the lender
doth receive it, or the lender doth sue for his money
within the year; these subsequent acts do not [Difference be-
make the contract or deeds or assurances thereof tween usury and
usurious taking.]
void; for it is a rule, that if the original contract
be not usurious, no matter er post facto can make
it so. [But though the original contract be good,
and free from the vice of usury, yet the party may
be guilty of usury by accepting a larger rate of in-
terest than is allowed by the statute. The accep-
tance, however, of such usurious interest would not
vitiate the original contract.] If one borrow of Bro. Obligation
me 10l. and bind himself to pay me by a day, 79.
and moreover bind himself that if he pay it not by
the day, that he shall pay me 201. for it; this
contract, and the deed for perfection of it, are
good; and this is not usurious, for all obligations
with conditions, for payment of money lent, are of
this nature, [equity, however, may relieve against
the penalty.] And yet if one borrow 100l. of me,
and for this mortgage land to me of a greater value
than 87. per annum, on condition that if he pay
the money at any time before the year's end, then
the assurance to be void; this should seem to be
an usurious contract, for in this case I am sure
to have by the agreement more than after the rate
of 87. per centum, and so it is not in the last case
before (43). [Such contract would not at this day

(43) When the former editions of this book were published, the rate of interest allowed by the statute 21 Jac. c. 17. was 87. per cent. per annum, which by the statute 12 Car. 2. c. 13. was reduced to 67. per cent. and by 12 Ann. stat. 2. c. 16, to 57. per cent. the utmost legal interest that can be now taken. See 13th edit. Co. Lit. 4. a. note 1.-The reasonableness of taking interest for the use of money, and the advantages arising from it to a commercial nation, are explained, in 2 Bl. Com. 455. For the doctrine of usury, what shall be deemed so, and the punishment for it, see Com. Dig. Bac. Abr. and Vin. Abr. tit. Usury; also the

man, Hill.

7 Car. 1.

Per Just. Brig- be deemed usurious.] If one borrow 100l. for a year, and give the broker 20l. to procure it; this will not make the contract usurious, nor the assurances void but for this the broker may be punished (44).

Stat. 27 El. ch.4. stat. 39El.ch.18.

to a sheriff con

trary to the sta

Also all obligations, made to a sheriff, contrary Obligations made to the statute of 23 H. 6, c. 10, are void or at least voidable by pleading. But of this see in obliga- tute. tions infra.

Collusion

veyances.

purchasers.

in

A deed also made, containing the grant of any fraudulent conCo. super Lit. 3. thing, with intent and of purpose to deceive and defraud one that shall afterwards buy the same 1. To deceive thing, is void. For it is to this purpose provided by a statute law, that all fraudulent conveyances of land, or any rent or profit out of land, made by whomsoever, with intent to deceive or defeat any that shall purchase the land, or any rent or profit out of it, for money, or other good consideration, of the fruit and effect of their purchase, shall be void against such purchasers for so much as they buy, and against all others that come in by or under them. But all such conveyances as are * made bona fide and upon good consideration, [this *P. 64. proposition is too general,] are not to be accounted fraudulent (45), [though the purchase be without notice of them. Concealment and secrecy are only evidence of fraud, and therefore the presumption arising from such evidence may be rebutted, by proving that the deed was made bona fide and on good consideration.] For the better understanding of which statute, and the law in these cases, observe, that conveyances bona fide are op

Co. 3. 1.

cases of the Earl of Chesterfield & others v. Janssen, 2 Ves. 125. 1 Atk. 301. Loyd v. Williams, 3 Wils. Rep. 250. Murray v. Harding, ibid, 390.-Morrisset v. King, 2 Burr. 891. Abrahams & Bunn, 4 vol. 2251. At what time interest shall commence on securities, legacies, &c. see Com. Dig. Chancery (3. S).—And when interest shall become principal and bear interest, see Powell's Mortgages, 384, 387, 399. This may be done three ways by assignment of mortgage with mortgagor's consent, 3 Atk. 271. Secondly; upon a master's report confirmed, and not before. 1 Wil. 478. 2 Eq. Ab. 530. And thirdly;

upon a fair agreement between mortgagor and mortgagee when interest is actually due, and not before. Salk. 449. 2 Atk. 331.-When a legacy carries interest, Com. Dig. Chancery (3 Y. 9) Vin. Devise (N. d.) 8 vol. 411. Bac. Abr. Legacy (K. 3). 1 Eq. Ca. Abr. 301. (44) By the statute 12 Car. 2. c. 13. § 3. (confirmed by 13 Car. 2. c. 14.) which inflicts a penalty of 201. and imprisonment for half a year on scriveners, brokers, and others, who take more procuration money than five shillings for every 100l. for a year. The statute 17 Geo. 3. c. 26. § 7, allows brokers to take 10 s. for the loan of every 100 l. advanced, as the consideration for an annuity.

(45) Although they are concealed, or were secretly made, Cro. Jac. 455.

Co.

ვ. 82. 83.

posed to such as are upon and with any trust ex-
press or implied: and good considerations are set
down in the statute to distinguish from such as are
not valuable, as nature, blood and the like (46).
[Marriage is a valuable consideration, so is a sti-
pulation by one branch of the family for the bene-
fit of another branch of the family, as in the case
of a release of a jointure, or the exoneration of
part of the lands from the same jointure. See Roe
v. Mitton, 2 Wils. Rep. 356.] If one convey
land with a present or future power of revocation,
or alteration, at his will that doth convey it, [so that
he settles and leaves himself at liberty to be dis-
charged from the settlement;] this shall be said a
fraudulent conveyance, as against him that shall
afterwards purchase this land. So that if one con-
vey his land to the use of himself for life, and after
to the use of divers of his blood, with a future
power, as after the death of H. or after such a day
to revoke it, and before the day he sell this land to
a stranger for a valuable consideration; in this
case the first deed shall be said to be fraudulent
and void as to him that shall purchase the land
to do him any hurt (47), [whether he has notice or
not of the former settlement, for notice is not ma-
terial, as the statute makes the former settlement
void. Gooch's case, 5 Co. 60; 2 Levinz. 105.]
And if one convey land with such a power of revo-
cation, and after, with an intent to defraud a pur-
chaser, make a feoffment to a stranger to extin-
guish the power, and after sell the land for valuable
consideration to a stranger, in this case both the
first and the second deed, as to the purchaser, shall
be said to be fraudulent, and therefore void. [On
such powers and the means of taking them out of
the application of the statute, see Booth's opinion
in the Appendix to this work.] And if there be Co. 6.72.
grandfather, father and son, and the grandfather

(46) Consideration of blood, or natural affection, is a good consideration: but not such a good consideration as is intended by the stat. of 27 Eliz. for a valuable consideration, as money, marriage, or the like, is the only good consideration within that act, 3 Co. 83. b. See further Vin. Abr. tit. Consideration; and Lloyd v. Spillit, Atk. 148, and Stiles v. The Attorney General, ibid, 152.

(47) Every voluntary conveyance shall prima facie be deemed fraudulent as to a purchaser, 2 Lev. 147. 1 Ca. Ch. 100, 217; for a conveyance with a power of revocation is in the same degree as a conveyance by fraud, Mo. 618. See further, how a power of revocation shall make a deed fraudulent, and how it must be reserved to be executed, to make it so, Com. Dig. Covin. (B. 3).