USURY - continued. a question of fact for the jury. Scott v. Lloyd, 9 Pet. 418. 41. So, of whether the exchange reckoned on the drawing of a bill was intended as a cover for usury. Andrews v. Pond, 13 Pet. 65. 42. The invalidity of a usurious contract made with reference to the law neither of the place where it was made nor of the place where it was to be performed, the law of both places forbidding such contracts, held determinable by the lex loci contractus. Ib. | USURY — continued. 50. Where one sues on the consideration for which a note was given, using the note merely as evidence, he can recover lawful interest, although the note be for interest at an unlawful rate, and governed by a law which denounces upon such contracts a forfeiture of all interest whatever. Newell v. Nixon, 4 Wal. 572. 51. Where a bank by its charter is forbidden to take more than a certain rate of interest, but no penalty is prescribed, and the effect of usury upon the contract is not declared, its effect must be determined by the general rules of law. A court of equity will enable the borrower to recover the excess beyond legal interest, but no more; and the rule applies as well to accommodation paper. Tiffany v. Boatman's Savings Institution, 18 Wal. 375. 43. In general, however, whether a contract of loan on a bond is usurious depends on the law of the place where the bond is payable. Junction Railroad Co. v. Ashland Bank, 12 Wal. 226. 44. A draft drawn on a resident of another state, and there accepted for the accommodation of the drawer and returned to him to be negotiated in the state where the drawer lives, on an understanding that, although by the terms of the acceptance it is payable in the state of acceptance, it shall be taken up at maturity by the drawer, is governed by the law of the state where the drawer 52. If under the law an usurious contract be lives and where it is negotiated; and if negotiated void, a purchaser of land charged with an usurious to one who has no knowledge of the facts, ex-loan by way of rent-charge may set up the usury cept such as he gathers from the draft, the pur-in defence to a distress for rent in arrear. Lloyd chaser may maintain an action thereon, if it be v. Scott, 4 Pet. 205. valid by the law of that state, although he purchased at a rate of discount usurious by the law of the state of acceptance, and by the law of that state contracts are void for usury. Tilden v. Blair, 21 Wal. 241. 45. A contract to pay interest after the rate either of the place at which it is made or of that at which it is to be performed, will not be usurious because for interest at a rate greater than the lawful rate of the other place, unless made with intent to avoid the penalty of an usurious contract at that place. Miller v. Tiffany, 1 Wal. 298. 46. A contract by letter for a loan of money by a commission merchant to a person engaged in business in another state, giving the lender a commission on all sales of the products of the business, whether made through the lender or not, held not usurious because it reserved interest at a rate unlawful in the state of the lender, but lawful in that of the borrower, where the suit arose. Cockle v. Flack, 93 U. S. 344. 47. He who seeks to be relieved from an usurious contract must offer to pay the principal and the legal interest. He who seeks the aid of a court of equity must offer to do equity. Brown v. Swann, 10 Pet. 497; Stanley v. Ġadsby, Id. 521. 48. Under a usury law which forbids the taking of interest at a greater than a certain rate, but does not avoid the securities, a court of equity will not refuse its aid in a suit to recover the principal. De Wolf v. Johnson, 10 Wheat. 367. 49. The general rule of equity, that a complainant can have relief for usury only to the extent of the excess, applies where both parties are claimants of a fund, as, although each party may 53. Where a statute, like that of the District of Columbia (Rev. Sts. §§ 715, 716), provides that one who contracts to receive more than a certain rate of interest shall forfeit the whole of the interest so contracted for, and shall recover only the principal, and that if one receives more than a certain rate, the party paying it may recover back all the interest paid by action brought within a year, the defendant in an action brought to recover a debt cannot set off, either under the statute or at common law, usurious interest paid more than a year before suit brought. Carter v. Carusi, 112 U. S. 478. 54. In Louisiana, usurious interest cannot be reclaimed, nor imputed to the principal, unless a suit for its recovery be commenced, or a plea of usury be set up, within twelve months after the payment thereof. Cook v. Lillo, 103 U. S. 792; Walsh v. Mayer, 111 U. S. 31. 55. If the right is not asserted within the statute period, it ceases to exist, and cannot be enforced in another state where there is no limitation. The provision requiring an assertion of the right within a certain time is a qualification of the right, and not a part of the law of the remedy merely, to be governed by the law of the forum. Walsh v. Mayer, 111 U. S. 31. Defence-Grantee of Equity of Redemption cannot set up Usury in Loan. See MORTGAGE -GRANTEE OF EQUITY, 1. Defence Not first made on Appeal or Error. See APPEAL AND ERROR-PROCEEDINGS ABOVE, 288. National Banking Act - Usury under. See NATIONAL BANK, 74-81. UTAH - continued. UTAH - Who may prosecute for Violations of the Law.] Under the organic act of September 9, entitled to prosecute for violations of the laws of 1850 (9 Sts. 453), organizing the territory of Utah, the territory, the act being susceptible of that the attorney-general of the territory, elected by construction, and the construction being supits legislature, and not the district attorney of ported by usage. Snow v. United States, 18 the United States, appointed by the president, is I Wal. 317. V. VARIANCE - Between Pleading and Proof-VENDOR AND PURCHASER In general. See PLEADING See TRIAL VARIANCE. How taken Advantage of. INTRODUCTION OF DENCE, 21, 22. EVI Evi Indictment for receiving Stolen Note- Rate. See INDICTMENT, 5. Ordinary Rules have no Application in Admiralty. See ADMIRALTY - PLEADING, 21, 22. Writ and Declaration — Matter of Abatement. See PLEADING DILATORY PLEAS, PLEADING PLEA TO MERITS, 8. 6; VENDOR AND PURCHASER - Bona Fide Pur- See VENDOR AND PURCHASER · In general Contracts between, etc. See VENDOR AND PURCHASER BONA FIDE PURCHASER continued. holder of the legal title. Gaines v. New Orleans, 6 Wal. 642. 4 A purchaser who takes merely a quitclaim deed is not regarded as a bona fide purchaser for value. May v. Le Claire, 11 Wal. 217; Villa V. Rodriguez, 12 Wal. 323. 5. What one must aver and prove to entitle himself to protection as a bona fide purchaser. Chiles, 10 Pet. 177; Crews v. Burchum, 1 Wormley v. Wormley, 8 Wheat. 421; Boone v. Black, 352. 6. A bona fide purchaser without notice, to be entitled to protection, must have been such, not only at the time of the contract or conveyance, but until the purchase-money was actually paid. Wormley v. Wormley, 8 Wheat. 421. 7. Possession is notice of an unrecorded deed, where it is open and notorious. Lea v. Polk BONA County Copper Co., 21 How. 493. IN GEN VENDOR AND PURCHASER BONA FIDE PURCHASER-Who is - Protection extended to - Notice What is Constructive Notice Rights. The protection extended in equity to a bona fide purchaser is extended to a purchaser of the legal title only, the purchaser of an equity being bound to notice a prior equity. Shirras v. Caig, 7 Cranch, 34; Vattier v. Hinde, 7 Pet. 252; Boone v. Chiles, 10 Pet. 177; Hallett v. Collins, 10 How. 174. 2. The rule which protects a bona fide purchaser for value applies only where the legal title has been conveyed and the purchase-money fully paid, not where the rights of the purchaser lie in an executory contract. Villa v. Rodriguez, 12 Wal. 323. 3. Although a court of equity may not assist to establish a merely equitable title against a bona fide purchaser for value, it does not follow that a plea of such purchase will avail against the 8. Open, notorious, and exclusive possession, under a claim of title, is enough to put all persons upon inquiry as to the interests, legal or equitable, of the person so in possession, and to charge them with notice of such interests. Hughes v. United States, 4 Wal. 232. 9. What is sufficient to affect a purchaser with notice of a prior contract of sale by the vendor. Caldwell v. Carrington, 9 Pet. 86. 10. In Illinois, open, visible, and exclusive possession of lands under a contract for a conveyance is constructive notice to creditors and subsequent purchasers of title thereto. Noyes v. Hall, 97 U. S. 34. 11. A party put by circumstances on inquiry as to a fact, is affected with constructive notice thereof. Oliver v. Piatt, 3 How. 333; Harrell v. Beall, 17 Wal. 590. 12. Notice of facts sufficient to put a party on inquiry is not, necessarily, notice of what he might learn by inquiry. Thus, it is not, when he had a right to rely on the assurances of his vendor, and so was not bound to inquire. Boyce v. Grundy, 3 Pet. 210. 13. To affect a purchaser for value with constructive notice, it should appear not merely that he might have acquired notice, but that he would have acquired it but for gross negligence. Wilson v. Wall, 6 Wal. 83. VENDOR AND PURCHASER PURCHASER — continued. BONA FIDE VENDOR AND PURCHASER 14. Notice to the scrivener employed only by the grantor is not constructive notice to the purchaser. Astor v. Wells, 4 Wheat. 466. 15. In Ohio, a bona fide purchaser for value without notice will take a good title, although the vendor made the conveyance to defraud a creditor who held a prior but unrecorded mortgage, and notwithstanding the statute against fraudulent conveyances. lb. 16. The equity of a bona fide purchase is not affected by the purchase of an outstanding legal title after notice. Lea v. Polk County Copper Co., 21 How. 493. 17. A purchaser from one who took under a forged deed executed in the name of a fictitious person in whose name a decree in equity had been obtained, held to have no title which equity could protect, although a bona fide purchaser for value. Sampeyreac v. United States, 7 Pet. 222. 18. If a bona fide purchaser reconvey to his grantor, and he in turn convey to another who has notice, such subsequent purchaser cannot avail himself of the equity arising out of the first purchase, as on reconveyance to the original vendor the original equity attached. Rogers v. Lindsey, 13 How. 441. 19. Where an occupant of premises in Salt Lake City, desiring to separate from a polygamous wife who lived there with him, but desiring to have the benefit of her services, entered into a secret agreement with her that she should have a half interest in the premises if she would remain, and afterwards took a conveyance of the land without disclosing the agreement, it was held that joint occupation, in the circumstances, was not constructive notice of the wife's claim, and that she had no rights as against one to whom title had passed for value without actual notice. Townsend v. Little, 109 U. S. 501. 20. If a legislature make a grant of lands in fee simple, a subsequent legislature cannot take away the title of a bona fide purchaser for a valuable consideration from the first grautee, on the ground that the first grant was fraudulent. Fletcher v. Peck, 6 Cranch, 87. PURCHASER continued. A negotiation for the sale of land, held not to have resulted in a contract, the offer not having been seasonably nor substantially accepted. Carr v. Duval, 14 Pet. 77. 2. A contract to convey land in fee, clear of incumbrances, was held broken when the defendant at the time of the contract had only an equity of redemption under a deed of trust under which the property was afterward sold. Metropolis Bank v. Guttschlick, 14 Pet. 19. 3. An agreement to sell land for a specified sum, and, on payment of a part of the purchase21. Where one seeks to recover property from money, to "make a deed," is a covenant to cona purchaser who defends as a bona fide purvey a perfect title free from all incumbrances; and chaser without notice, the plaintiff has the burden the vendor, suing for the purchase-money, must of proving notice. Calais Steamboat Co. v. Scud-aver and prove that he had such a title and was der, 2 Black, 372. ready and willing to convey it. Washington v. Ogden, 1 Black, 450. Bound to see to Application of Purchase money, when. See TRUST CREATION AND CONSTRUC TION, 28 et seq. 4. Where an agreement to buy land is expressly "dependent on the surrender and cancelment" of a prior contract by which the proposed vendor had agreed to sell to another person, it is Constructive Notice of Suit - Purchase pen- upon condition precedent that the vendor prodente Lite. See LIS PENDENS, 1 et seq. Notice of Lien of Former Vendor for Pur- See VENDOR AND PURCHASER cure a formal deed of release, for which a mere parol understanding between him and the persons claiming under the prior contract, some of them by way of recorded deeds, that it is at VEN- an end, although after default for which the vendor might avoid it, is no equivalent. Ib. VENDOR AND PURCHASER- IN GENERAL continued. 5. In contracts for the sale of land, the promises of the vendor and the purchaser are construed to be dependent, unless a contrary intention plainly appear. Columbia Bank v. Hagner, 1 Pet. 455. 6. A sealed agreement for a sale of land, by which one party promises to make a deed, and the other to pay the purchase-money, a part in cash within a certain time, and the remainder in instalments, with mortgage security, is an agreement with reciprocal covenants to be concurrently performed. Washington v. Ogden, 1 Black, 450. 7. -Obligations, Rights, and Remedies.] Independent of local usage, it seems that one who is to execute and deliver a deed should prepare it. Willard v. Tayloe, 8 Wal. 557. And see Taylor v. Longworth, 14 Pet. 172. bond, and suffer the title to the residue to be lost by the non-payment of taxes, a court of equity will not lend its aid to carry into effect a judgment at law on the bond. Skillern v. May, 4 Cranch, 137. 17. If a sale of land be on condition that if the purchaser fail to comply with the terms of sale within thirty days, the land shall be resold on his account, the vendor cannot maintain an action on the contract until the deficit has been ascertained by a resale. Webster v. Hoban, 7 Cranch, 399. 18. The purchaser at a sale of lots in the city of Washington, held not to have acquired a fee simple in a proportionate part of an internal alley laid out for the common benefit of the lots so purchased and of other lots in the square, and 8. The rule that the vendee must prepare and entitled in equity to recover the purchase-money tender the conveyance for execution does not thereof, although the practice had been to charge prevail in Ohio. Taylor v. Longworth, 14 Pet. the alleys proportionately upon the lots, and he 172. knew it, and accepted conveyance without ob9. To maintain an action against the pur-jection on that score. Pratt v. Law, 9 Cranch, chaser for not accepting the land, the vendor 456. must aver and prove readiness and an offer to perform on the day fixed by the contract. Columbia Bank v. Hagner, 1 Pet. 455. 10. What amounts to a sufficient tender of performance on the part of the purchaser, where by the contract he is to deposit the purchasemoney in a certain bank, and transfer the certificate of deposit to the vendor, when the bank refuses to receive the money and give such a certificate. Secomb v. Steele, 20 How. 94. 11. Where purchasers have given their notes for the purchase-money, the presumption is that the conveyances were made. Lyman v. United States Bank, 12 How. 225. 12. Where a vendor sues to recover the price of land for which notes were taken, some of which it is admitted have been paid, he is not obliged to produce the notes that have been paid. It is to be presumed that they were surrendered. Ib. 13. A purchaser in possession under the vendor who buys up a better outstanding title cannot set it up to defeat the vendor's right to the purchase-money; he can only recoup what he has fairly paid. Bush v. Marshall, 6 How. 284. 14. A material misrepresentation by a vendor, although made by mistake, must be made good, specifically, if in the vendor's power, otherwise by way of damages. McFerran v. Taylor, 3 Cranch, 270. 15. Where one advances money in part performance of an agreement to purchase land and refuses to pay further, the other party being ready and willing to perform on his part, he cannot recover the money so advanced. Hans brough v. Peck, 5 Wal. 497. 16. If the obligee of a bond obtain title in his own name for part of the land, the assignment of which to the obligor was the consideration of the 19. If the purchaser of land on credit, in possession under a bond for a deed, suffer it to be sold for taxes, the vendor will be bound to convey only subject to the tax-title incumbrance, and is entitled to payment in full. Bradford v. Union Bank, 13 How. 57. 20. And if the purchaser's surety, on surrender of the original bond, procure of the vendor a new bond for conveyance to himself, the purchaser being insolvent and consenting thereto, and the vendor being ignorant of the tax sale, receiving no new consideration and intending merely to substitute the surety for the purchaser, the fact of such substitution may be proved by parol, on a bill by the vendor to rescind and enjoin a judgment against him for the purchasemoney, and the bond may be so reformed as to express the real agreement. Ib. 21. And this may be done under an answer setting up such facts, without a cross-bill. Ib. 22. Where a contract for the sale of land, with an agreement to convey by deed of general warranty, has been executed by delivery of possession and payment of the purchase-money, the purchaser cannot, in the absence of fraud and concealment, refuse to receive a deed with proper covenants, nor go into equity for indemnity against incumbrances, especially where the incumbrances are such that it is uncertain whether anything, and if anything how much, will ever become payable thereon, but must rely on the covenants he has agreed to receive. Refeld v. Woodfolk, 22 How. 318. 23. Where the owner of land valuable chiefly for the timber thereon agrees to sell, the purchase-money to be paid in three annual instalments, but the purchaser to take possession, cut a certain quantity of timber each year, and pay monthly according to the amount cut, convey VENDOR AND PURCHASER — IN GENERAL continued. ance to be made on full payment, and during the term, and being in arrear the purchaser mortgages timber cut and on the land to another, who takes possession recognizing the rights of the owner and afterwards abandons, the owner may recover of the mortgagee the value of the timber so cut, if the owner enter, and remove and prepare the timber for market, and the mortgagee take it from him, time being of the essence of the original contract, and the owner having a right so to do, although the contract contain no express provision for a re-entry. Jennison v. Leonard, 21 Wal. 302. 24. Where one sells land agreeing that he will purchase it back at a certain price within five years, if the vendee so desires, the right of the vendee to maintain a suit for the price is fixed by his notifying the vendor, within the time, to make the purchase at the expiration of it, and by tendering a deed within a reasonable time thereafter. Brown v. Slee, 103 U. S. 828. 25. If one sell and convey land to a county on terms of credit which the county cannot legally agree to, the vendor's right to a reconveyance accrues, not at the expiration of the time for which credit was illegally given, but at once. Chapman v. Douglas County, 107 U. S. 348. 26. If a municipality, e. g., a county, make a purchase of land, and take a deed of it, as it may do, and give a mortgage payable at a future definite time for the purchase-money, as it may not do, the vendor is entitled to demand a reconveyance of the land with the improvements, unless the county shall pay the purchase-money within a reasonable time to be fixed by decree, such payment being within its powers. 1b. 27. Defect of Title Defect of Quantity.] Defect of title by reason of an incumbrance fully known to the purchaser at the time of the sale, held no bar to an action on a promissory note given for the purchase-money. Greenleaf v. Cook, 2 Wheat. 13. 28. Mere defect of title in the vendor, without fraud, affords no ground for relieving a purchaser in undisturbed possession from payment of the purchase-money. Patton v. Taylor, 7 How. 132; Noonan v. Lee, 2 Black, 499. And see Greenleaf v. Cook, 2 Wheat. 13. 29. The vendor, in such case, is liable only to the extent of his covenants. Noonan v. Lee, 2 Black, 499. 30. The rule that where land is sold as for a certain quantity, equity will relieve if there be a defect of quantity, applies only to contracts for the sale of land in a settled country, not to sales of entries in a military tract, where the custom is for the vendee to take his chance of surplus or deficiency. Dunlap v. Dunlap, 12 Wheat. 574. 31. Avoidance of Contract.] Inability of the vendor to make a good title is no ground for a decree avoiding the contract, where there is an adequate remedy at law. Hepburn v. Dunlop, 1 Wheat. 179. 32. Incapacity of the purchaser to hold land by reason of alienage, whether ground for refusing specific performance or not, is none for a decree avoiding the contract. Ib. 33. An old contract to sell to a third person which has been manifestly abandoned, and so is not enforceable in equity, is not a valid objection to title which will justify avoiding the contract. Greenleaf v. Queen, 1 Pet. 138. 34. Nor is a claim for dower, if the purchaser knew, or had the means of knowing, of its existence, and knew that he was purchasing from a trustee. Ib. 35. The purchaser of land may treat the contract of sale as rescinded, if the vendor do not perform or offer to perform on the day, although he have taken possession under the contract. Columbia Bank v. Hagner, 1 Pet. 455. 36. If the purchaser notify the vendor that he will not be bound by the contract of sale, unless the vendor pay a sum admitted to be due on a settlement of which the contract formed a part, the contract will not be at an end on mere neglect of the vendor to adopt the alternative tendered. Barry v. Coombe, 1 Pet. 640. 37. Where the purchaser discovers fraud in the contract of sale, he is bound to communicate knowledge thereof to the vendor promptly, and to act consistently in reference thereto, in order to preserve his right to set the contract aside. Boyce v. Grundy, 3 Pet. 210. 38. A discrepancy between facts and representations in a contract for the purchase of nine hundred and fifty acres of land at twenty dollars per acre, which makes a difference of thirtythree per centum in the cost, presents a case for avoiding the contract, not for compensation. Ib. 39. Where a defect in the vendor's title is discovered after the sale, and is then revealed to the purchaser by the vendor, the purchaser will not be permitted to obtain the true title, and then have the contract set aside. Galloway v. Finley, 12 Pet. 264. 40. A conveyance set aside at the instance of the vendor for fraudulent representations as to quantity, value, and title, the vendor residing at a distance from the land, and being ignorant of the matters to which the representations related, and the purchaser residing near it, and having knowledge of those matters. Tyler v. Black, 13 How. 230. 41. Where a purchaser having a bond for a deed goes into possession, he holds merely as a licensee, and if he fail to pay as agreed, the vendor may treat the contract as at an end, and proceed in ejectment for the possession; and in Georgia, as in this country generally, he may proceed without giving notice to quit. Burnett v. Caldwell, 9 Wal. 290. |