Hough v. Horsey

Alvey, J.,

delivered the opinion of the Court.

We think the order of .the Court below refusing the injunction should be affirmed, and for the reason assigned by the Judge that the bill of complaint presents no proper ground for relief.

The charge in the bill in regard to the omission of the proper revenue stamp on the mortgage, and the defect in the affidavit thereto, are shown to be groundless by the production in Court of the original mortgage itself. The only other ground for the injunction seriously relied on, is the charge of the existence of usury in the mortgage debt. But as to this latter charge, apart from the very general and imperfect manner in which it is made, and the failure to show that tender and offer to pay the real debt with legal interest had been made to the defendant, the complainant is not in a position to entitle her to be relieved from what is charged to be usury in the contract upon which the mortgage debt is founded. She is in no wise damnified, and to allow her the benefit of the abatement of the mortgage debt now claimed, would be in effect allowing her to defeat in part her own contract with the mortgagor.

The complainant purchased the mortgaged estate from the mortgagor, and by the deed of conveyance, which is exhibited with the bill, she was, to pay as part of the consideration mentioned in the deed, and in addition to the sum of $14,850, the mortgage debt of $2,000 due to the defendant; and it is this mortgage debt which is now alleged to be affected with usury, and which the complainant seeks to have reduced. The mortgagor makes no complaint himself, and he is not a party to this bill. If the mortgage debt were to be reduced on the present application, by reason of the alleged usury in the contract, it is manifest the complainant would get the estate purchased for less than she agreed to pay for it. Whether the mortgage debt was tainted with usury or not, was wholly immaterial in determining the price agreed to be paid for the land. The complainant agreed specifically to pay the mort *185 gago debt according to the face of the mortgage, as part of the consideration for the land purchased; and this feature essentially distinguishes the present case from that in which the purchase is made of the mere equity of redemption, without any special agreement as to the application of the purchase money, or any reference whatever to the particular amount due on the outstanding mortgage. Here the whole estate was purchased, with a special agreement for the application of a certain part of the purchase money; and the effect of the present application is to relieve the complainant from doing what she has expressly agreed to do, and upon the faith of which she obtained the conveyance for the land embraced by the mortgage. Such a proposition cannot be entertained by a Court of Equity for a moment. If usury has in fact been exacted, the right remains with the mortgagor to sue for and recover back all over and above the legal rate of interest that ho may have been required to pay. Scott vs. Leary, 34 Md., 389 . But this right of action has not been assigned to the complainant, nor is she in the slightest degree interested in it. If such right of action exists, the mortgagor may avail himself of it or not, as he may think proper; but if he thinks that good faith forbids his resort to the remedy afforded by the law, no person has a right to invoke such remedy for him. The complainant should pay the mortgage debt, according to her contract of purchase, and leave tiie question of usury to be settled between the mortgagor and mortgagee. By so doing she will conform to her stipulation, and save her land from exposure to sale.

(Decided 22d May, 1872.)

Seeing in the bill no ground whatever for an injunction, the order appealed from will bo affirmed, and the bill dismissed, with costs.

Order affirmed and bill dismissed.