Briggs v. Sholes

Parker, C. J.

There is nothing on the record to entitle the plaintiffs to move for judgment.

The action is, in form, a common writ of entry, founded upon the plaintiffs’ own seizin. To this the defendant has filed a plea. If that plea were bad in form and substance, as it does not admit the plaintiffs’ right, they cannot ask judgment upon it, but, according to the usual practice, should either have moved to set it aside, or have answered it by demurrer or otherwise. 3 N. H. Rep. 116 , Copeland vs. Jones; Ditto 119, Forbes vs. Marsh; 5 N. H. Rep. 151 , Plummer vs. Drake; Ditto 556, S. C.; 6 N. H. Rep. 516 , Alcott vs. Alden; 9 N. H. Rep. 531, 533 , Tappan vs. Prescott; 11 N. H. Rep. 66 , Williams vs. Little; 3 N. H. Rep. 185 , Gibson vs. Stearns. The plaintiffs’ motion must, therefore, be overruled. But for the purpose of facilitating the progress of the case, we have considered it farther.

The defence attempted to be set up by the plea, is usury; and, for the purpose of laying a foundation for the defence, there is an introductory part to the plea, alleging that the plaintiffs’ action is founded upon a certain mortgage deed executed by the defendant, the title under which has passed to the plaintiffs by assignment of the mortgage. If the fact be that the defendant is sued upon a mortgage for the payment of money, he is entitled by statute to come into court and allege usury in his defence, for the purpose of procuring the deduction of three times the amount unlawfully taken or received, from the sum lawfully due ; and the court are bound, upon the proper verification of the fact, in entering np the conditional judgment, to make the requisite deduction.

Is the defendant sued upon a mortgage ? The plaintiffs’ declaration does not show the fact, but the defendant alleges *266 the fact to e so, and there is nothing in the declaration or other proceedings to negative it. The suit may be founded upon a mortgage, and that may be the plaintiffs’ only title, although it does not so appear on the face of the declaration. Formerly it seems to have been held in Massachusetts that upon condition broken the mortgagee might maintain a writ of entry generally ; but that after condition broken he must declare specially, or, if he did not, he might be defeated by plea. 2 Mass. R. 493, 496 , Erskine vs. Townsend. But this doctrine is overruled, 13 Mass. R. 515, 519 , Grew vs. Kemp, and the mortgagee, or his assignee, is now allowed to bring a general writ of entry, counting on his own seizin. This is the common mode. But the form of declaring by a general instead of a special count, cannot oust the defendant of his rights. If, on a special declaration upon a mortgage, he would have been entitled to have a conditional judgment entered, he has the same right upon the general count. The only question would be as to the mode of reaching the case. This might be done, perhaps, by pleading the general issue, putting the plaintiff to show his title, and, when it appeared that it was by mortgage, confessing the breach of the condition, and moving for the entry of a conditional judgment. Perhaps the same course might be allowed if the defence were usury, although it would be less in accordance with ordinary rules, as the defence of usury is, according to our practice, made by a formal plea, although the statute does not require it to be made in that form. In Bickford vs. Daniels, 2 N. H. Rep. 71 , it is held that when the demand-ant does not count upon a mortgage, “ the tenant, after default or verdict, may plead in bar, or, as we usually term it, file .a suggestion, against any other judgment than one as of mortgage, averring that the title of the demandant is only by a mortgage. This the demandant may admit by a demurrer, or deny by taking issue on the facts averred ; and in the latter case the issue can be tried by a jury, and the question settled with perfect facility on common law principles.” *267 p. 73. The abstract of the case does not confine the filing of the plea or suggestion to a time subsequent to the verdict or default, nor does there seem to be any good reason why the practice may not be admitted at a prior stage of the proceedings ; as, for instance, in this case, where, the defence being usury, it should according to the ordinary course be made before a default or verdict.

It would seem, however, that this suggestion, or plea, in point of form should be separate and distinct from the plea of usury, instead of being set forth by way of introduction or inducement to it, as in this case ; because, if the fact be otherwise, the plaintiff may traverse the allegation and raise an issue upon it. 2 N. H. Rep. 71 , Bickford vs. Daniels . And of course he would be entitled to move to set aside the plea, if the fact is found against the allegation that his action is upon a mortgage.

Another course might be, however, to permit the demand-ant to deny the allegation that he claimed by mortgage, and upon that denial to set aside the plea as a matter of course, and then estop the plaintiff by his denial from setting up a mortgage title on the general issue, if the defendant saw fit to file that plea.

But it may be well for the defendant in this case to consider whether, before any farther proceedings are had, he will not move to amend his plea. There is an error in moving for a deduction of three times the amount of the sum of $581.44, and interest on it. There is no pretence for deducting any thing on account of interest upon usury paid by the party. If this imperfection being in the prayer for judgment may be overlooked, ( 3 N. H. Rep. 185 , Gibson vs. Stearns ; 4 East 502, LeBret vs. Papillon,) it may deserve consideration whether the allegation that the defendant paid, and Bingham accepted, the sum of $581.44 over and above the legal interest, for forbearance of the principal sum of $1224.69, is in accordance with the other facts stated. The plea states in effect that this sum of $581.44 was made up *268 of the annual sums of $36.74. with compound interest thereon. It appears at present as if, under the agreement stated, the annual sum of $36.74 must be regarded as the usury paid for forbearance of the principal, and as if the compound interest on those annual sums of $36.74 was received for their forbearance. If this be so, the question might arise whether that state of facts would support the allegation, or whether the defendant upon any averments could entitle himself to a deduction of three times the amount of the compound interest upon the usury which he paid along with the usury.

Plaintiffs’ motion overruled.