Clarkson's adm'r. v. Garland

C. wanting to raise $2335, tells J. this, and offers him as many slaves as will command that sum: upon which, J. pays him $2335,in gross, for 16 slaves, and G. gives him a bill of sale thereof: and it is, at the same time, agreed, that the slaves shall remain in C’s possession, on hire, for one year; and if at end of the year, C. shall pay J. $2935, J. shall,in consideration thereof, re-sell the slaves to him; if any of the slaves die during year, C. to pay same price and no less, for survivors; and if C. shall not pay the $ 2935 punctually, J’s agreement to re-sell them to him to be void. Held, a shift to evade statute of usury, and contract usurious. C. contracting usurious debt to G. gives him a deed of trust of slaves, to secure it: afterwards, C. voluntarily surrenders trust slaves to trustee, to he sold to satisfy the debt: at trustee’s sale, in itself fair, G. buys greater part of trust slaves, and the proceeds of sales are applied to the debt. Held, though deed of trust usurious, yet trustee’s sales of the subject to G. the usurious creditor, shall not be disturbed in equity. Though where one resorts to equity for relief against usurious debt yet unpaid, he shall he required to pay only the principal advanced to him ‘without even lawful interest, according to the statute of Virginia; yet where debtor seeks, in equity, an account of and decree for money already paid, on usurious contract, the measure of relief is, the excess paid above principal and lawful interest; and if his payments exceed principal and lawful interest, the surplus with interest shall be decreed to him.

Clarkson exhibited his bill against Garland and Jacobs, in the superiour court of chancery of Lynchburg, setting forth, that on the 23d March 1815, he in fact borrowed of Jacobs the sum of 2335 dollars, at exorbitant usury, though this usurious loan was covered by the device of a sale of 16 slaves by Clarkson to Jacobs, redeemable by Clarkson, on payment of 2935 dollars, on or before the 23d March 1816; and on the 22d May 1815, he in fact borrowed of Jacobs another sum of 2666 dollars 26 cents, likewise on usury, though this loan was also covered, in like manner, by the device of a sale of 14 slaves by Clarkson to Jacobs, redeemable by Clarkson, on payment of 3394 dollars, on or before the 23d March 1816. That, the slaves not being redeemed by Clarkson, Garland, with full knowledge of the usury, by an arrangement with Jacobs, became jointly and equally interested with him in the contracts; and, in August 1816, they procured Clarkson’s bond for 7000 dollars, being the aggregate of the two usurious debts contracted to Jacobs, with the addition of further usury for forbearance. That, at the same time, Clarkson was indebted to Garland on other accounts, and Garland exacted usury for forbearance of these debts also 5 for which, and the usurious premium for forbearance thereof, amounting together to 2465 dollars 56 cents, Clarkson gave Garland another bond. And then, Clarkson, by a deed of trust, mortgaged 28 slaves, to secure payment, in March following, the debts due by both the bonds, with interest from the dates thereof. That, after these bonds and the deed of trust were executed, Clarkson delivered Garland his crop of 21383 pounds of tobacco, for which he was entitled to credit at the rate of 20 dollars per cwt. being the price stipulated by the previous contract; but Garland gave him credit for it, only at the rate of 11 dollars and some cents per cwt. That a large balance of the debts remaining unpaid, Garland, on the 6th August. 1817, made a new contract with Clarkson, for farther forbearance thereof, on a new usurious premium, and for the forbearance, on usurious premium also, of other debts claimed by Garland of Clark-son; and then took Clarkson’s bond for 11250 dollars payable (with interest from the dale) in June 1818: and Clarkson, to secure payment of the debt due by this bond, by a new deed of trust, mortgaged fifty-one slaves. Of what items this large debt of 11250 dollars was composed, Clarkson said he did not exactly know, and ho called on Garland to explain; it consisted in part of the old balance of the former usurious debts, of new usurious premiums for forbearance thereof, of other debts claimed, and usurious premiums for forbearance of them too; a very large proportion of the whole sum was usury. . That Clarkson paid Garland 15 hogsheads of tobacco, which Garland was to give him credit for, at the then fair market price, which was from 8 to 11 dollars per cwt. That in November 1818, Garland caused a sale to be made, of the slaves mortgaged by the deed of trust of August 1817, for tho payment of the debt of 11250 dollars thereby secured : at which sale, two of the slaves were purchased by Garland, aud twelve by third persons, for the aggregate sum of 7270 dollars : ten others were bought in, nominally by Garland, but really for Clarkson, at the price of 3856 dollars Garland having agreed to let him retain them, at the prices at which he should buy them; but Garland afterwards refused (o let him have them, without a premium of 600 dollars on the cost, to which extortion Clarkson was, in his necessities, forced to submit. That, after this sale, farther forbearance, for new usurious premiums, was given : and a new bond, dated in November 1818, was exacted of Clarkson, for 7483 dollars 70 cents, payable in November 1819, (embracing the accumulated usury of the former transactions, with new usury, the 3856 dollars, the price of the ten slaves, and the 600 dollars advance thereon) and a new deed of trust was executed by Clarkson, mortgaging 25 slaves to secure this debt. After this, Clarkson paid Garland 8 hogsheads of tobacco, tho price whereof, 588 dollars 60 cents, Garland credited on tho judgment he afterwards obtained on the last mentioned bond. Thai in November 1819, Garland caused a sale to he made of the slaves morí» gaged by the last deed of trust, and purchased the greater part of them himself, at a great sacrifice; which he effected by refusing to let his own creditors bid at the sales, to the amount of the debts he owed them. The proceeds of these gajeg were 6020 dollars 50 cents, which sum was also credited on the judgment Garland afterwards obtained on the bond of November 1818. This judgment, recovered against Clarkson in August 1821, was for 7483 dollars 70 cents, the debt mentioned in the bond, with interest thereon from November 14th 1818, subject to credits for the said sums of 588 dollars 60 cents, paid October 1st 1819, and 6020 dollars 50 cents paid November 25th 1819. Clark-son acknowledged in the bill, that he had had, during the course of these transactions, various dealings with Garland, for merchandize bought of him; and that he could not state, exactly, how the debts he had contracted in those dealings, had been brought into the bonds and deeds of trust before mentioned. But he charged, that all the contracts, bonds and deeds of trust, specified in his bill, were tainted with most exorbitant usury, and void; and therefore, that the sales made under the deeds of trust were void also, and as to all the purchases made by Garland himself, at those sales, especially the last, the sales ought to be held naught, and Garland compelled to restore the slaves to him, and render an account of the profits thereof. And he prayed that Garland and Jacobs might answer the allegations of the bill on oath; that Garland might exhibit detailed accounts of the transactions, and his books in which those accounts were kept; that an account of all the transactions between him and Jacobs, between him and Garland and Jacobs, and between him and Garland, might be taken, in which no interest whatsoever might be allowed to them, but only the principal sums due them; that they, respectively, might be decreed to refund the excess, if any, paid by him above the principal; that Garland might be compelled to restore the slaves he had bought at the sales, and render an account of, and pay him, the profits thereof; and that Garland should be injoined from further proceedings on his judgment on the bond of November 1818; and general relief. The injunction was awarded. Jacobs, in his answer, went into the details of the two transactions of March and May 1815; and stated, that those contracts were bond fide sales by Clarkson to him, the first of 16 slaves for 2335 dollars, and the last of 14 slaves for 2666 dollars 66 cents, and conditional re-sales of the same slaves by him to Clarkson, for 2935 dollars, and 3394 dollars, payable in March 1816, provided those prices should he then punctually paid: ho denied, that the sales were devices to cover usurious loans, or that there was any treaty for a loan, or any borrowing or lending, actual or intended by either party: but he owned, that Clarkson told him he wanted certain sums of money, and offered as many slaves as would command those sums. He denied the usury charged to have been practised by him and Garland in 1816: but his account of the transaction was not very distinct: he said, that iu March 1812, he agreed with Garland to take a moiety of the benefit and burthen of a contract which he had made with Clarkson, in February preceding, whereby Clarkson was to sell his crop of tobacco to Garland, for 11 dollars 15 cents per cwt. and Garland to lend Clarkson 7000 dollars on simple interest; and the product of the tobacco was to be applied to die payment of sundry debts of Clarkson due to different persons, and the debt due to Jacobs among the rest: that tile 7000 dollars secured by the bond of August 1816, was made up of the debt due Jacobs on the transactions of March and May 1815, with simple interest thereon, and of some claims of Garland against Clarkson: that he contributed a moiety of the 7000 dollars; and Garland, in 1817, accounted to him for the same with interest thereon ; and, thenceforth, he ceased to have any concern in ov knowledge of the transactions. Garland, in his answer, denied all the allegations of the bill generally, and each allegation in particular, which imputed to him. usury, extortion or oppression, or knowledge of or participation in the usury and extortion imputed to Jacobs. He stated, that Clarkson in February 1816 sold him his crop of tobacco at the price of 11 dollars 15 cents per cwt. stipulated by contract in writing (which he exhibited), and pe agree(j ^o advance for Clarkson 7000 dollars more, to be applied to the payment of certain specified debts of Clarkson, of which the debt to Jacobs was one: in these contracts Jacobs had no concern. That the debt due to Jacobs, amounting to 6329 dollars, was paid off in March 1816. That, in August 1816, Jacobs took an interest in the debt of 7000 dollars, and in the tobacco contract: and Clarkson gave Garland his bond for the 7000 dollars, and another bond for 2465 dollars 56 cents, for moneys due Garland on other accounts; and a deed of trust mortgaging slaves to secure payment of both debts. That no usurious premium was included in either, nor was any contracted for. That in 1817, Garland, at Clarkson’s request, paid Jacobs the portion of the debt of 7000 dollars due to him. That, in. August 1817, Clarkson gave Garland a new bond for 11250 dollars, payable in June 1818, and a new deed of trust of slaves, to secure the debt: and these securities were given for the then amount of debt justly due to Garland, on good and valuable consideration; without any usurious premium for the loan or forbearance of money: but the answer did not state or explain how, or of what particular items, this large debt was made up. That all the payments made him by Clarkson were fairly credited. That at the sale of the trust subject in November 1818, which was a cash sale, he purchased ten of the slaves, without any previous arrangement with Clarkson on the subject, and after-wards sold them to him, at his earnest request, on a credit, at an advance of 600 dollars: and then he took Clarkson’s bond for 7483 dollars 70 cents (tire just balance of debt then due him, without any usury whatever) and the deed of trust of 25 slaves to secure the same. That this trust subject was sold in November 1819, and fairly sold, without any contrivance of Garland to reduce the price, and fairly purchased by him: the proceeds of this sale, as well as the price of 8 hogsheads of tobacco delivered by Clarkson in October 1819, were credited on the bond, and reduced the balance to 1331 dollars 32 cents, bearing interest from November 25th 1819, for which Garland had obtained judgment, and which was justly due to him. There was much documentary evidence exhibited, and many depositions filed, bearing on the questions of fact put in issue. 1st. The written contracts between Clarkson and Jacobs, of March and May 1815, (considered in connexion with Jacobs’s answer), were relied on to prove the usury imputed to those transactions. The first was a bill of sale executed by Clarkson and John Barnett to Jacobs, under date March 23d 1815, whereby they conveyed to him 16 slaves by name, in consideration of 2335 dollars 5 with two memorándums indorsed thereon 5 one, stating that the slaves were delivered to Jacobs ; the other, stating that Clarkson and Barnett had the same 16 slaves, the property of Jacobs, then in their possession, on hire till March 23d 1816 5 and they being desirous of purchasing the slaves of Jacobs, he agreed, that if they should pay him 2935 dollars on or before March 23d 181G, he would and did thereby, in consideration thereof, sell the slaves to them, but if either of the slaves should die, Jacobs was to receive the same sum, and no less, for flie survivors, and if the 2935 dollars should not be paid by the 23d March 1816, this agreement was to be utterly null and void. The other contract was a bill of sale executed by Clarkson to Jacobs, under date May 22d 1815, whereby Clarkson conveyed to Jacobs 14 slaves, in consideration of 2666 dollars 66 cents j with two memorandums indorsed thereon, exactly like those indorsed on the first contract, save only that the sum which was to be paid by Clarkson for these slaves, on the 23d March 1816, was 3394 dollars 17 cents. And for proof of Garland’s knowledge of the true character of these contracts, before he mixed his own with them, many circumstances, disclosed by the evidence, were relied on. 2dly. The contract between Clarkson and Garland, for the sale of Clarkson?s crop of tobacco to Garland, was exhibited. It was dated February 6th 1816; and it bore, that Clarkson sold Garland his crop of tobacco, supposed about 20000 pounds, deliverable the 1st May following, for which Garland was to allow him 11 dollars 15 cents per cwt. and to advance him besides 7000 dollars, to be applied to the payment of sundry specified debts, and among them 6495 dollars 83 cents to Jacobs. There were depositions taken on Clarkson’s part, for the purpose of proving, that the fair market price of thd tobacco, at the time, was 20 dollars per cwt.; that in the original contract made in February 1816, the price stipulated for the tobacco, was 20 dollars; that that was a verbal contract, and that the written contract exhibited, by which the price was reduced to 11 dollars 15 cents, was in fact signed some time after the contract was made. On Garland’s part, depositions were filed, for the purpose of proving, that the agreed and the fair price of the tobacco, was truly stated in the written contract to be 11 dollars 15 cents. 3dly. As to the 600 dollars also, demanded by Garland and agreed to be paid by Clarkson, as an advance upon the price of the 10 slaves purchased by Garland at the sale of November 1818, and then sold by him to Clarkson, there was evidence on both sides; evidence on Garland’s part, that he bought the slaves at the sale on his own account, and after his purchase sold them to Clarkson on a credit; evidence on Clarkson’s part, adduced to sustain his charge of extortion and oppression in this particular., 4thly. Garland exhibited with his answer, a series of accounts of the transactions between him and Clarkson, wherein there was a debit to Clarkson, under date May 1st 1817, in these words; “To this sum, which you agreed to allow for trouble in attending to your business in settling your accounts with different persons, and for interest on various sums oi small amount, on which no interest has been charged, and for interest on about 1500 dollars advanced for you in 1816, and not contemplated in the loan of 7000 dollars— $482 74.” 5thly. From the accounts exhibited by Garland, it could not be ascertained, how the large debt of 11250 dollars, secured by the bond and deed of trust of August 1817, was made up. 6thly. There was no evidence to sustain the imputation against Garland, of unfair conduct and contrivance, at the sale of November 1819, to enable him to purchase the slaves he then bought, at under prices; and he adduced evidence to shew, that Clarkson himself voluntarily produced the slaves to be sold by the trustee, was present at both sales, and made no objection or complaint; and that Garland’s conduct was fair, and the prices he gave, the reasonable value of the property. Clarkson died pending the suit, and it was revived in the name of Rives his administrator. On the motion of the plaintiff, the chancellor awarded an injunction (November 5th 1824) to restrain Garland from removing out of the state, the slaves held by him under his purchases at the sales of the trust subject. The cause coming on for hearing in October 1825, the chancellor decreed, 1. That, as to Jacobs’s purchases and Clarkson’s re-purchases of slaves, in March and May 1815, they were shifts to avoid the statute of usury, and the transactions consequently usurious; that, so far as Jacobs was individually concerned, Clarkson was to account for the prices Jacobs paid him for the slaves, and legal interest thereon, instead of the prices he contracted to pay Jacobs for the redemption of them; and that an account of these transactions should be stated by a commissioner on this principle. 2. That, as to the joint transactions of Garland and Jacobs with Clarkson, the commissioner should state .accounts of them, and if there was usury in them, should strike it off, and charge Clarkson with legal interest only. 3. That as to the transactions between Clarkson and Garland, the commissioner should examine and state all the accounts between them, strike off the usury if any should appear,, and charge legal interest. 4. That there was no objection to Garland’s purchases at the sales of the trust subject. 5. That there was no necessity for tire injunction awarded the 5th November 1824, and that it should be discharged, as having been improvidently awarded. And the court declared, that, without giving any other opinion as to what might or might not be usurious in any part of the transactions, or any opinion on the tobacco contract, it would expect of the commissioner, such a state of all the accounts, as he should consider just and proper, or as either party should require. Clarkson’s administrator appealed to this court.