Owens v. Wright, 161 N.C. 127 (1912)

Dec. 20, 1912 · Supreme Court of North Carolina

161 N.C. 127

J. E. OWENS and Wife v. R. H. WRIGHT and H. A. FOUSHEE, Trustee.

(Filed 20 December, 1912.)

1. Public Sales — Illegal Contracts — Suppression of Bidding.

An agreement to suppress bidding at a public sale is contra bonos mores, and tbe law will not assist either party to enforce such an agreement.

2. Same — Offer and Acceptance — Consideration.

As a result of an agreement between plaintiff and defendant made at a public sale, that the former should pay the latter the amount of his bid and a certain sum of money on a note he owed him, the property was knocked down to the defendant. The plaintiff was unable to comply with his part of the agreement, -whereupon the defendant made a proposition that if the plaintiff paid a certain less sum by noon of that day he should have the property, which the plaintiff accepted, and before the appointed time went to the defendant to pay the agreed sum, and found that the defendant had sold to a third party: Held, (1) the first agreement was unenforcible, not having been complied with, and as being contra bonos mores; (2) the subsequent offer and acceptance made a new and separate contract, not affected by the infirmity of the first, and is enforcible.

3. Usury — Equity.

A debtor seeking the aid of a court of equity will have the usurious element eliminated from his debt only upon his paying the principal . and legal rate of interest, the only forfeiture enforcible against the creditor being the excess of the legal rate.

4. Same — Interpretation of Statutes.

Our usury statute, Revisal, 3712a, does not affect the equitable principles relating to obligations concerning which the debtor invokes the equitable jurisdiction of the courts, as, in this case, injunctive relief against foreclosure of the security, and an inquiry into the status of the debt on account of the usurious charge of interest thereon.

5. Same — Mortgages.

A mortgage debtor sought the equitable relief by injunction against the foreclosure of a mortgage given to secure his note tainted by usury, and asked that the debt be inquired into on that account. The mortgaged property was sold, and after paying off prior encumbrances, a certain amount of money was available as a credit on the plaintiff’s indebtedness, which payment was resisted by tbe plaintiff on tbe ground that, under our •statute, Revisal, 3712a, tbe interest and penalty were forfeited, and tbe amount was therefore not due: Held, (1) tbe plaintiff having sought, equitable relief, must do equity, and was chargeable with the principal of bis debt and the legal rate of interest thereon; (2) the statute had no application in administering the equities between the parties.

Walkek and Allen, JJ., and Clakk, C. J., dissent, in part.

Appeal by plaintiffs from Whedbee, J., at July Special Term, 1912, of Durham.

Civil action. The complaint sets out two causes of action: (1) To recover damages for breach of contract in regard to the sale of a stock of goods; (2) to restrain the sale of plaintiffs’ real estate under the power of sale, contained in a deed in trust from plaintiffs to H. A. Eoushee, trastee, securing a note for $4,000, bearing interest from maturity, due twelve months after date, dated 31 August, 1909, payable by J. Henry Smith Com-¡Dany, a corporation, and J. E. and Emma D. Owens to J. Henry Smith and indorsed to R. H. Wright 31 August, 1909. On the back of the note are indorsed certain payments. The ground upon which the injunction is asked is that the note is usurious, and plaintiffs seek to eliminate the alleged usury and set up as a counterclaim, or set-off the penalty of double the interest.

At the conclusion of plaintiffs’ evidence, defendants offered none, and moved for judgment of nonsuit. His Honor rendered the following judgment:

“This cause coming on to be heard, and being heard at this term of the court, before his Honor, H. W. WhecHbee, judge, and a jury, at the conclusion of the evidence offered by the plaintiffs, the defendant R. IT. Wright, through counsel, waived any right to personal judgment against the plaintiffs, or either of them, for any balance claimed on the note, and moved judgment of nonsuit under all the evidence of the plaintiffs and the admissions of record; andj further, that the amount admitted to be in the hands of R. P. Reade, trustee, be turned over to the defendant R. H. Wright, to be applied to the note referred to in the pleadings. The motion was allowed.

“Thereupon it is ordered and adjudged by the court that the plaintiffs take nothing by this action, and pay the costs thereof, and that the defendant R. P. Reade, trustee, pay to R. H. Wright the sum of $664.25, less taxes, to be paid by the said trustee, it being the amount admitted to remain in the hands of the trustee after paying off and discharging prior encumbrances. The costs of this .action will be taxed by the clerk of the court against the plaintiffs.”

It appears that pending this action the real estate belonging to plaintiffs was sold under a first mortgage (that of defendant Wright being a second mortgage), and that after satisfying the first mortgage there is $664.25 only applicable to the second mortgage.

From the judgment rendered, the plaintiffs appeal.

Guthrie & Guthrie, Manning & Everett for plaintiffs.

Fuller & Reade, Bryant & Brogden for defendants.

.BeowN, J.

1. In respect to the breach of contract in the sale of the goods, the facts are that the Smith Company’s goods were being sold at auction by the receivers; there were other bidders at the sale; all had dropped out except plaintiff and defendant. Plaintiff Owens bid $1,465: Defendant bid $5 more. While this bid was being cried, defendant proposed to plaintiff that, if plaintiff would stop bidding and let defendant have the goods, defendant would sell them to plaintiff at the amount of defendant’s bid, viz., $1,470, on condition that, in addition to said sum, plaintiff should pay defendant $800 on the note here-inbefore mentioned. Plaintiff accepted the proposition and stopped bidding, and the goods were “knocked down” to defendant.

As we understand the case, the plaintiff does not seek to enforce this contract, or to recover damages of defendant for its breach.

Plaintiff could not recover, if nothing else appeared, for two reasons: first, because he failed to comply with the contract himself, and, secondly, because the enforcement of such an agreement, by which bidding at public sales is suppressed, is contra bonos mores, and the law will not assist either party to enforce such an agreement. Ingram v. Ingram, 49 N. C., 189; Blythe v. Lovingood, 24 N. C., 22.

Tbe plaintiff further testifies that he endeavored to raise the $2,270 in time to pay the defendant the $1,470 for the goods and the $800 on the note, but failed to do so, and then informed the defendant that he could not comply with the agreement.

Whereupon defendant said to plaintiff on* Saturday morning: “I will tell you what I will do: if you will raise $1,880 on this thing, I will try to hold the offer open until 12 o’clock; but you must hurry up.”

Plaintiff further testifies that he accepted the offer and raised the $1,880 and went to defendant before 12 o’clock Saturday to comply with the new agreement; that at 11 or 11:30 a. m. plaintiff saw defendant, who at once said: “You are too late; I have held the thing open as long as I could, and can’t hold it any longer, and think I have sold it.” The defendant had sold the stock between 10 and 12 a. m. that day for $2,600, to other parties.

We think this last proposition made by defendant to the plaintiff was a new proposition, independent of and disconnected with the first agreement made during the auction sale. At the time the defendant made the last proposition the plaintiff had abandoned the first, and the defendant was in the sole and undisputed ownership of the goods.

He then; offered to sell them to plaintiff for $1,880, payable by 12 o’clock, and plaintiff accepted the offer. An offer to buy or sell becomes a binding agreement when the person to whom the offer is made accepts it and communicates his acceptance. 35 Oyc., 52 and 53.

'This last contract has no connection with the first, which was an agreement to suppress bidding and void, and can be enforced without calling in the aid of the first or illegal con- ■ track

“A new contract, founded, on a new consideration, although' in relation to property respecting which there had been unlawful transactions between the parties, is not itself unlawful.” Marshall, C. J., in Armstrong v. Toler, 24 U. S., 257.

The subject is discussed at length in Electrova Co. v. Insurance Co., 156 N. C., 234, and many authorities cited; and in Jewelry Co. v. Joyner, 159 N. C., 644, which are cases in point.

2. The plaintiffs Owens and wife, Emma, also aver in their complaint that the $4,000 note hereinbefore described and secured in the deed in trust to Eoushee is usurious, and they pray affirmatively “that the defendant H. A. Foushee, trustee, be restrained and enjoined from selling the house and lot of plaintiff Emma D. Owens on the first day of July, 1911, as he has advertised so to do, until it can be inquired into and determined by the court what amount, if any, is justly due and owing by the plaintiffs on the note secured by said deed of trust or mortgage.”

His Honor seems to have held with plaintiffs that the note contained certain usurious charges, and eliminated them, but in adjusting the matter rested his calculation upon the decision of the Court in Churchill v. Turnage, 122 N. C., 426. To this ruling plaintiffs except and ask us to overrule that case.

The principle settled by that case is, that a debtor seeking the aid of a court of equity will have' the usurious element eliminated from his debt only upon his paying the principal and legal rate of interest, the only forfeiture enforced against the creditor being the excess of the legal rate. This case was subsequently cited and approved in Cheek v. B. and L. Association, 127 N. C., 122.

In Churchill v. Turnage no novel principle was promulgated, for the opinion recognizes that “the precedents are both numerous and uniform.”

The same principle was applied in 1847 -in Ballinger v. Edwards, where it is held in an opinion by Chief Justice Ruffin that “the statute of usury is as -binding in a court of equity'as at law, except in cases where the borrower asks the assistance of a court of equity, and then the court will compel him to do equity by paying the principal and the legal interest.”

To the same effect are the cases of Gore v. Lewis, 109 N. C., 539; Burwell v. Burgwyn, 100 N. C., 389; Purnell v. Vaughan, 82 N. C., 134; Beard v. Bingham, 76 N. C., 285.

In Purnell v. Vaughan, Qhief Justice Smith says: “Equity will relieve against usury only upon the borrower’s paying- the principal sum loaned, and legal interest.”

In Simonton v. Lanier, 71 N. C., 498, Bynum, J., says: “As the defendants came into this court to ask favors, and this is a court of equity as well as law, they will be required to do equity, that is, to pay the debt and legal interest thereon.”

This principle of equity has been so thoroughly engrafted upon our jurisprudence that we do not feel disposed to disturb it. It applies alike to all classes of persons, married or single, and whether principal or surety.

The statute of 1907, chapter 110, Pell’s Revisal, 3712a, has been called to our attention, but an examination of it shows that if has no bearing whatever upon this case, and does not change the principles of equity declared and enforced, in the numerous cases we have cited, for more than half a century.

This principle which has been enforced so long in this State is universally followed in other jurisdictions. The Supreme Court of the United States, in passing on the National usury law applicable to National banks (a statute almost exactly like ours), has held in a great many cases that, “It is an established principle of equity jurisprudence that he who seeks the aid of equity to be delivered from usury must do equity by paying or offering to pay the principal and Jawful interest upon the money borrowed as a condition of granting the relief asked.” Ency. of Supreme Court U. S., 850. In note 69 will be found collected a large number of cases from that Court recognizing and enforcing that principle.

For the reasons given, we are of opinion upon the question of usury his Honor’s ruling was correct and must be affirmed.

Upon the other cause of action, relating to the breach of contract in the sale of the stock of goods, there must be another trial. .

The costs of this Court will be paid by defendant.

The judgment of nonsuit is set aside and the cause remanded to be proceeded with in accordance with this opinion.

Error.

Waleer, J.,

dissenting in part: I concur in so much of the Court’s opinion as relates to the contract between plaintiff and defendant E. H. "Wright, for the purchase of the goods formerly belonging to Smith Company, and sold by the receivers, as my view is that there was evidence of a breach of that contract entitling plaintiff to his damages for the same; but on the other question, as to the usury and the plaintiff’s rights in that respect, the view which I take of the law compels me to dissent.

I do not deny that there are a few precedents which apparently support the conclusion reached by the Court, but they do not take into account the provisions of our statutes which bear upon the matter. The Eevisal, sec. 1951, declares that “the taking, receiving, reserving, or charging a greater rate of interest than 6 per centum per annum, either before or after the interest may accrue, when knowingly done, shall be a forfeiture of the entire interest which the note or other evidence of debt carries with it,” and “if the greater rate of interest has been paid, the person by whom it has been paid may recover back twice the amount of interest so paid.” Where an action is brought to recover the amount of the note, the payee is allowed by the same section to set up the penalty as a counterclaim. We have held, at this term, that the legal effect of this statute is to make the loan one without interest, where usurious interest was reserved, and of course it becomes so as soon as the note for the loan is executed. Ward v. Sugg, 113 N. C., 489; Ervin v. Bank, ante, 42. In Smith v. B. and L. Association, 119 N. C., 249, it is said: “Where usurious interest is charged, all interest is forfeited, and the legal effect of the contract being simply a loan without interest, all payments, however made, must be credited on the principal, and, in addition, the borrower is entitled to recover, or have credited on the debt, double the amount of payments made as interest within two years prior to action brought.” This being so, when the present suit was brought, plaintiff only owed the defendant Wright the amount of the note less the payments, for, as we have seen, these must be applied to the reduction, of the principal, and, besides, it must be further reduced by the amount of tbe penalty. But it is said tbat we are in a court of equity, and as plaintiff bas asked for equitable relief, tbat is, for an injunction to stop tbe sale by tbe defendant R. H. Wright, under tbe mortgage, and tbat as “be wbo asks equity must do equity,” tbe plaintiff, contrary to tbe very words of tbe statute and also its meaning, as a condition of granting relief, must pay tbe principal, witb legal interest, forgetting tbat there is no legal interest, as tbe Legislature, in tbis very statute, bas plainly said there shall be none. Tbis is penalizing tbe plaintiff instead of tbe defendant, and entirely reversing tbe mandate of tbe law, which, of course, is a repeal of it. No precedent, and especially no baldly erroneous precedent, can compel me to disregard and set -at naught tbe clearly expressed will of tbe people as recorded in our statute. There is no law requiring tbis Court to do tbat. If tbis Court bas decided contrary to tbe statute and thus repealed it, we should retrace our steps, and reinstate it as speedily as possible. Tbe rule of stare decisis is not imperative or inflexible, and it bas been said tbat tbe maxim should not be allowed to stand as an absolute bar in tbe way of a reexamination of legal questions previously decided by tbe same court, if improperly determined, and especially where tbe decisions reviewed have not passed into a settled rule of property or contract, so tbat parties may thereafter have been misled in their business transactions. Colorado Seminary v. Board of Commissioners, 71 Pac., 410 (30 Col., 507). Tbe Court said, in tbat case, tbat it bad gone as far as any other appellate tribunal in maintaining tbe maxim of stare decisis. It will be found tbat tbis rule, tbe great efficiency of which is admitted, is confined to decisions which establish rules of property or of contract upon which parties may reasonably have relied in making contracts or in acquiring titles. Hill v. R. R., 143 N. C., 539. Lord Mansfield stated it, witb its limitations, in Wyndham v. Chetwood, 1 Burrows, 419, as follows: “When solemn determinations, acquiesced under, have settled precise cases and become a rule of property, they ought for tbe sake of certainty to be observed as if they bad originally formed a part of tbe text of tbe statute,” and tbe same was said of it in our own cases of Long v. Walker, 105 N. C., 109; Grantham v. Kennedy, 91 N. C., 151; Kirby v. Boyette, 118 N. C., 244; Young v. Jackson, 92 N. C., at p. 148. “Where judicial decisions may fairly be presumed to have entered into the business transactions of a country and have been acted upon as a rule of contracts and property, it is the duty of the court, on the principle of stare decids, to adhere to such decisions without regard to how it might be inclined to decide if the question were new. And this rule obtains although the court may be of the belief that such decisions are founded upon an erroneous principle and are not sound, for when parties have acted upon such decisions as settled law, and rights have been vested thereunder, their inherent correctness or incorrectness in the abstract are of less importance than that the rule of proprty so established should be constant and invariable.” 11 Cyc., 755. The reason of the rule of stare decisis is stated in Hill v. R. R., supra, with a citation of many cases exemplifying it, and showing, I think, conclusively that it does not apply to a case like this. I believe no court has applied it to any case where it was not found that a reversal of the former decision or decisions would unsettle titles or prejudice parties who have made investments or entered into contracts in reliance upon the former adjudication as correct and final. And why should •the rule be extended farther than this? There is no construction of a constitution or a statute involved. The former decisions have simply nullified the statute, and there was no attempt to construe, otherwise the result of those cases would have been different. If money-lenders have risked their money upon loans drawing usurious interest, it is their own fault, for no man has a license or a vested right to violate the law. A reversal of former decisions will therefore have no harmful effect. A fe.w of them may be caught in the act, but they are mere lawbreakers and entitled to no consideration from the court — simply, because, as to this kind of transaction, they are not within the pale of the law. To visit them with the penalties of the law would be but enforcing the will of the Legislature and the policy of the State, as expressed in this statute. It would be a most wholesome decision and a return to the true meaning' of the law. If this question were res integra, I am quite sure it may safely be said that this Court would be unanimous in the opinion as to the former decisions being erroneous, and plainly so in view of the unambiguous wording of the statute. I refer to the cases cited in the opinion of the Court. There is one recent case apparently to the contrary. Ward v. Sugg, 113 N. C., 489. See, also, dissenting opinion of the present Chief Justice in Churchill v. Turnage, 122 N. C., 426, where the subject is ably and learnedly discussed and the authorities cited.

This is now only a proceeding to determine how the parties will share in the surplus of the fund realized from a sale of the land under the first mortgage, and for that purpose to ascertain how much is due by the plaintiff to the defendant R. II. Wright. Besides, Wright is claiming usury in this suit, that is, the sum of $1,478.44, as of 1 July, 1911, and he prays judgment for this amount in his answer. Upon the admitted facts, there is no calculation authorized by law by which he would be entitled to this amount. The note was for $4,000, and did not carry interest until twelve months after its date. Plaintiff testified — • and his testimony must be taken as true,'as- there was a non-suit — that he paid $2,987.44 on the note, which would leave $1,012.56, without counting any interest, for the note did not bear interest until after its maturity, 31 August, 1911, and the payments were made as follows:

1909. October 6 . December 4 December 10 1910. January 14 April 4 ... 1911. J anuary 17 1909. August 31 . $2,987.44 $ 150.00 100.00 50.00 15.0.00 1,950.00 197.44 390.00

So that, leaving the statute, Eevisal, see. 1951, as construed by us, out of consideration, there would be only a very small amount of interest to be added to the principal after deducting the total of the payments. But the statute positively declares that where unlawful interest is reserved, the note shall not carry any interest at all; it is, therefore, a noninterest-bearing security. Even if Wright is not to be regarded as the original payee — and I do not think there can be any doubt that he is to be so regarded, upon the facts, as they now appear — he took the note with full knowledge of the usury, and therefore, as we will see, the principal of the note must be reduced by the payments and double the amount of the interest. The statute expressly makes the penalty the subject of a counterclaim. Ee-visal, sec. 1951; Cobb v. Morgan, 83 N. C., 211, and it was held in Harris v. Burwell, 65 N. C., 584, overruling Neal v. Lea, 64 N. C., 678, that any counterclaim, good under the law against the original payee of the note, shall be good also against his assignee, or indorsee, especially if he purchased the note with notice of the counterclaim. • That case construed Code, sec. 177; Eevisal, sec. 400. So that in any view of the transaction, E. H. Wright, who knew all the facts, took the note and held it subject to any defense or counterclaim of the makers. E. H. Wright, if not in law the original payee, took the note well knowing that, under the law, it did not bear interest, and I do not know of any case that holds that, under such circumstances, the right to interest can be revived. There is no authority which holds that this Court can charge interest upon a note which, at the time it was bought by the holder, did not bear interest. It has no more power to do so than it would have if the note, on its face and by agreement of the parties, did not carry interest. In my statement of the payments made by plaintiffs to Wright or for him, and of the balance due on the note, we have allowed the plaintiff only for actual payments, without regard to the provision of the statute doubling the amount of the interest paid. If this is done, the credit as of 3 August, 1909, should be $780, which would reduce the balance to $622.56. But there should be a still further reduction, for E. H. Wright paid only $3,660 for the note, and as he is really and in law tbe original payee, tbe note having been made with tbe understanding that be should be tbe owner of it, that amount is the legal principal. It is all that plaintiff ever received, and that, in law and in good morals, is all defendant can justly demand. Deducting from this principal the payments, as above stated, that is, $2,987.44, and there is left $612.56, which is $51.69 less than the amount ($664.25) in Mr. Beade’s hands, as trustee under the first mortgage, for distribution. But if we take from this amount the sum of $390, which should be deducted if the penalty is allowed, as' the payment of $390 made 31 August must be doubled, we have a balance of $222.56, much less than the amount in the hands of the trustee. So that in any view, starting with a principal of $4,000 and deducting only the payments, but bearing in mind that the note, by its terms, did not bear interest for a year or until after its maturity, we find that defendant E. H. "Wright demanded usury when he filed his answer in this case. Deducting the payments during the first year and then allowing him interest on the balance from 31 August, 1910, to 17 January, 1911, when the last payment was made, and then taking off that payment, and there is left $1,040.21, and yet in his answer he demands judgment “that he recover the sum of $1,478.44 and interest from 1 July, 1911,” and that the $664.25, the amount in Mr. Beade’s hands, be applied pro tanto to its payment. In the case of Manning v. Elliott, 92 N. C., 48, Justice Merrimon, referring to the maxim that he who asks equity must do equity by paying the principal and legal interest, says it does not apply to a case like this one. “This rule, however, does not apply to the case of a lender of money, who comes into cóurt asking the enforcement of his usurious claim; he would encounter another maxim, which requires him who would sue in a court of equity to come with clean hands.”

What are the facts of this case? It must be remembered that the court withdrew the case from the jury and decided, upon the testimony, that plaintiff was not entitled to recover anything, and then entered judgment of nonsuit. This entitles plaintiff to have us take the most favorable view of the evidence in his behalf. When this is done, it appears plainly that the transaction wbicb culminated in tbe execution of tbe note and mortgage, while conducted in tbe name of J. Henry Smith as payee, was in fact intended for tbe benefit of tbe defendant E. H. Wright, and be was the real payee. There is plenary evidence and at least some evidence to show that tbe name of Smith was merely used that defendant might escape tbe penalties of tbe usury. Tbe form of tbe transaction was merely colorable and intended to disguise tbe real nature of tbe transaction. Plaintiff testified that E. H. Wright was present all the time, and bis attorneys drew tbe papers, and they were submitted to Wright for bis approval before they were signed, and be actually approved them with certain interlined amendments. Wright went with Owens to see the bouse and lot of Mrs. Owens, wbicb was to be mortgaged to secure the note, and be told Owens that if be would pay tbe interest in advance ($240) and convey to him the small triangular lot in Durham, valued by Wright at $50, and also pay him $100 in money as a bonus, or as usury, to call it by its right name, he would buy tbe note from Owens. This was before tbe note was executed. Tbe money was paid and tbe lot conveyed at tbe request of Wright. J. E. Owens paid tbe $340 to J. Henry Smith, not for himself, but for Wright, according to Wright’s instruction, and Wright was present when tbe payment was made, wbicb was shortly after tbe execution of tbe note, but Wright bad said it would be all right to wait a day or two. Tbe note was transferred to Wright on 31 August, tbe day it was given. There was evidence to show that E. H. Wright was tbe master spirit in tbe transaction. He dominated tbe situation and was making an advantageous contract for himself, and not for Owens or Owens & Co. Tbe note was really made to him. Although in tbe name of Owens, it was for bis use and benefit. He is, therefore, to be regarded, in law, as tbe real payee. He sought, in tbe beginning, to enforce payment for tbe full amount. I think, as matter of law, be must be charged with all tbe usury. (Bynum v. Rogers 49 N. C., 399; Pell’s Eevisal, sec. 1951, and cases in notes); but the evidence certainly entitled tbe plaintiff to have tbe jury pass upon tbe transaction in order that they might say whether or not it was usurious as to Wright. 39 Cyc., 1052, 1053, 1054; Yarborough v. Hughes, 139 N. C., 199; Miller v. Insurance Co., 118 N. C., 612. In law, be must be considered as the original payee, because he virtually assumed that relation to the note by his dealings in respect to it. The form of the transaction is not regarded so much as the substance, and when we view it as it really was and as it was intended to be, it reeks with usury. The law will penetrate beyond the covering of form and look at the substance and the matter as it really, and in essence, is, however it may seem to be. The outward semblance is of no moment; it is the true character of the thing’ that determines the rights of the parties. Gay v. Parpart, 106 U. S., 699. Look at it but for a moment. R. H. Wright plans the entire scheme. He receives interest ($240) in advance, when no interest was payable until after the first year. In addition to this, he gets $100 as a bonus and a lot worth, by agreement, $50. In other words, they started out by extorting from this plaintiff, who was in necessitous and straitened circumstances, as unlawful interest,' $390, and this was done twelve months before any interest began to accrue upon the note. How will we ever enforce the beneficent provisions of this statute if such transactions can be conducted with impunity? Every moneylender, especially every usurer, always secures himself by a mortgage or by collaterals, and the poor debtor must always resort to the court to stay his mailed hands until the matter can be investigated; but for this he must pay the penalty of forfeiting his rights under the statute, Revisal, sec. 1951, and, strange to say, the very law that gives the right is made to take it away, simply because the debtor seeks to vindicate it in the courts, the only place where he can ever expect to get relief. Is not this a complete reversal of the maxim that where there is a right, there is always a remedy for its enforcement (ubi jus ibi idem, remedium) ? Mr. Broom in his excellent and standard work on Legal Maxims (6 Am. Ed.), marg. p. 192, in explaining this maxim, says that “jus" signifies “the legal authority to do or demand something,” while "remedium” is defined to be the right of action, or the means given by the law for the recovery or protection of the right, and that whenever the law gives a right, it at the same time gives a complete remedy for tbe same {lex semper dahU remedium). “If a man,” says be, “has a right, he must, it has been observed in a celebrated case, have a means to vindicate and maintain it, and a remedy if he is injured in the exercise and enjoyment of it; and, indeed, it is a vain thing- to imagine a right without a remedy, for want of right and want of remedy are reciprocal.” I do not think the courts can annex a penalty, or a forfeiture of a statutory right, to the bringing of a suit, by a party aggrieved, for the vindication or protection of that right. Plaintiff is appealing to the court, not for its favor, nor is he invoking the exercise of its discretion, but is asserting, in the legal and rightful, and in the only way, to enforce his statutory right. There is no court of chancery now, as there was in England, where this peculiar doctrine, set up against this plaintiff’s claim and to bar his plain legal right, originated. There is but one kind of court with us, where all kinds of rights are administered. Nor is the writ of injunction now an equitable remedy. It is a legal remedy given by the statute, Eevisal, sec. 806, as much so as is arrest and bail, claim and delivery, and attachment. They are only provisional or ancillary remedies. Code, Title IX, 1 vol., p. 110, and legal remedies. Plaintiff was, under this statute, entitled to the injunction unconditionally, as a matter of right, and not as a favor from the court. The ancient chancery court, perhaps, had the right to annex a condition to the exercise of its jurisdiction, but not the modem court of law, governed as it is by the mandate of the statute.

It seems to have been overlooked, that this suit is also for the recovery of the penalty, and the equity rule, as it is called, does not apply. Cheek v. B. and L. Association, 127 N. C., 121. Nor does it apply where the usurer actually seeks a foreclosure or, as in this case, to recover his debt out of the proceeds of a sale made under a prior mortgage, which is practically the same thing., Bennett v. Best, 142 N. C., 168; Moore v. Woodward, 83 N. C., 531; Arrington v. Goodrich, 95 N. C., 462; Gore v. Lewis, 109 N. C., 539. The plaintiffs in this case are not asking for any equity, and, therefore, cannot be required to do equity, and besides, there is no equity to do, unless it can with reason and justice be said that, in order to avail himself of his legal and provisional remedy given by tbe statute, Revisal, 806, to prevent bis creditor, by a sale under tbe power contained in tbe mortgage, from collecting usurious and extortionate interest on bis debt, be must surrender valuable legal rights which are given by tbe law in tbe execution of a sound public policy. Atkins v. Crumpler, 118 N. C., 532; Smith v. B. and L. Association, 119 N. C., 249; Cheek v. B. and L. Association, 126 N. C., 242; Ward v. Sugg, 113 N. C., 489; Moore v. Beaman, 112 N. C., 558. Is this an equity? The statute says peremptorily that there must be no interest. ¥e say there must be tbe legal rate, when there is no rate at all on a usurious contract, and it is a misnomer to call what is now allowed as interest tbe legal rate. Besides, in Ms answer, defendant seeks to recover nearly $1,500, which is more, in any view, than be is lawfully entitled to receive, and it can make no difference, in law, whether he seeks to recover it as plaintiff., or as defendant. Tbe decision of tbe Court concedes to tbe debtor, in theory, everything tbe statute gives him, until be attempts to assert his statutory right in practice, and against him who violated it, when he loses it at once. Hoes this not make a dead letter of the statute? It is putting a premium on usury and so intrenches the usurer by compelling the oppressed debtor to do what is called equity, that the former risks nothing in exacting unlawful interest, but is protected in his effort to consummate the wrong. If this be the correct rule, the Legislature will, perhaps, by amendment, make its intention so clear that this anomaly in the law will not again be presented. The fact that the defendant remitted the excess over the amount in the trustee’s hands plays no part in this case. It was too late to repent or change his mind. The locus peneteniiw was gone. Tbe wrong had already been committed. His Honor proceeded upon tbe wrong theory, for if the calculation had been properly made, tbe plaintiff was entitled to a large part, if not all, of the fund in Mr. Reade’s bands.

If the former decisions apply to this case, they should be overruled, so that a borrower may not be told that as soon as he attempts to enforce his rights be will lose them. I think the new trial should extend to tbe usurious transaction, and the law correctly administered in regard to that branch of the case.

Clare:, 0. J.,

concurring in the dissent of Walker, J.: Ee-visal, 1951, provides that “taking or charging a greater rate of interest than 6 per cent per annum, either before or after the interest may accrue, when knowingly done, shall be a forfeiture of the entire interest which the note or other evidence of debt carries with it, or which has been agreed to be paid thereon. And in case a greater rate of interest has been paid, the person or his legal representatives or corporation by whom it has been paid may recover back twice the amount of interest paid.”

This statute makes no suggestion that the debtor shall not have this remedy when the creditor shall secure his debt by a mortgage and the debtor shall be forced to take action to prevent sale under the mortgage, and tenders the amount legally due according to the statute. Indeed, this Court wrote suclj. exception into the statute in Churchill v. Turnage, 122 N. C., 426, but that case has been cited only once since (and then it was distinguished), in Cheek v. Association, 127 N. C., 122. On the other hand, in Eevisal, 3712a, which has been enacted since Churchill v. Turnage, being chapter 110, Laws 19 07, it is provided that when a mortgage is given on household furniture the penalty is incurred. It was not intended, however, to restrict the remedy to mortgages in such cases, but merely to emphasize the remedy, for Eevisal, 1951, contains no exception of any kind.

I concur with Mr. Justice Walker that the statute .should be followed, and not' the exception engrafted upon it by judicial legislation in Churchill v. Turnage, supra.

AlleN, J.,

dissenting: I concur in the conclusion of the Court as to usury, but do not think what occurred on Saturday between the plaintiff and defendant made a new contract. Under the first agreement, which the Court holds to be invalid, the plaintiff was to pay the defendant $1,470 for. the goods and $800 on a note. He failed to get the money, and told the defendant he could not do so. The defendant then said: “I will tell you what I will do: If you will raise $1,880 on this thing, I will try to hold the offer open until 12 o’clock; but you must hurry up.”

Tbis cannot, I think, be a new contract, and it amounts to no more than changing tbe amount to be paid in casb under tbe original contract.