Fullerton v. McCurdy , 4 Lans. 132 ( 1871 )

By the Court

Mullin, P. J.

The question, whether the transaction between McCurdy and the plaintiff was a loan by the former to the latter, and the farm conveyed as security for the loan, or whether it was a purchase of said farm, with an agreement to convey to plaintiff on the payment of the money advanced by him (the defendant) to Shafer, was one of fact; and the court having found, on conflicting evidence, that it was not a loan, but an absolute purchase, with a verbal agreement to sell, the finding is conclusive, and the judgment founded thereon is right, and must be affirmed.

If the question of fact was open for review, I should feel constrained to concur with the learned judge who tried" the cause, in'the conclusion at which he has arrived.

As a judgment for specific performance was denied, because the purchaser of the defendant, McCurdy, was not a party, the plaintiff may institute another action for that purpose. 1 will not, therefore, consider the question whether he is entitled to that relief on the facts disclosed by hipa. ■

That the purchaser is a necessary party, I have no doubt. He has, by virtue of his contract of purchase, an interest in the land, which should be disposed of for the protection of both the plaintiff and McCurdy. A judgment for specific performance, to which the purchaser was not a party, would leave the contract of purchase in full force, without the ability on the part of the vendor to perform it. And if the case is one in which the purchaser has purchased and paid for the land, without notice of the plaintiff’s rights, a judgment for specific performance against the vendor might be unavailing. (Fry on Specific Performance, 114, and note 5, on same page.) If the purchaser had notice of the plaintiff’s rights, his contract should be annulled, if performance by the vendor is decreed.

To protect the plaintiff against the danger of having the judgment in this case held a bar to a suit for specific performance, there should be added to it a clause declaring it to be without prejudice to the right of plaintiff to bring an action for specific performance or to redeem.

I am unable to understand why the plaintiff should deem it either necessary or .proper to assail this contract as usurious, which he alleges was entered into between him and McCurdy, by which the latter agreed to take the title to the land from Shafer, and hold it on security for the money he should advance for that purpose. Such a defence, if successful, annuls the contract, and places the parties as they were before it was made. How is the plaintiff ben efited by such an adj ndication ? The land would not revert to the plaintiff. McCurdy got nothing from him, and could not he compelled to surrender anything to him. It is not pretended in the plaintiff’s complaint that Shafer held the premises by way of security for a debt; and, hence, if the title of plaintiff was usurious and void, and should revert to Shafer, the plaintiff would not be entitled to it. It seems to me, therefore, a waste of time and money to wrangle over a question which can, in no contingency, be of any benefit to the plaintiff.

If the plaintiff is to be considered a purchaser merely, and he is such only, if Shafer is to be decreed to be a purchaser, he cannot assail a transaction for usury without paying, or offering to pay, what McCurdy paid for the land.

It is the borrower only who is relieved from the payment or tender of money borrowed, as a condition precedent to the right to maintain an action to set aside a transaction for usury.

The judgment should be qualified, as above suggested, and, as qualified, affirmed, with costs.