Deering v. Sawtel
| Decision Date | 01 May 1826 |
| Citation | 4 Me. 191 |
| Parties | DEERING v. SAWTEL |
| Court | Maine Supreme Court |
IN this case, which was a writ of entry, brought upon a mortgage deed by the assignee of the mortgagee, against the grantee the mortgagor; the tenant pleaded that the note, to secure which the mortgage was given, was usurious; and this being traversed, issue was joined thereon. At the trial, before Preble J. the tenant, having executed a release to the mortgagor, who was the maker of the note, offered him as a witness to prove the usury. He was objected to by the plaintiff's counsel, on the ground that this being a negotiable note, no party to it could be admitted a witness to impeach its original validity. But the Judge overruled the objection; and the witness fully proving the usury, the tenant had a verdict, which was taken subject to the opinion of the court.
Fessenden and Deblois for the demandant, cited the following authorities in support of the general objection made at the trial. Walton v. Shelly 1 D. & E. 296. Adams v Lingard Peake's Ca. 117. Hart v. McIntosh 1 Esp. 298. Bent v. Baker 3 D. & E. 34. Buckland v. Tankard 5 D. & E. 578. Carrington v Milner Peake's Ca. 6. Humphrey v. Moxon ib. 52. Phetheon v. Whitmore ib. 40. 1 Phil. Ev. 49, 50. Warren v. Merry 3 Mass. 27. Parker v. Lovejoy ib. 565. Churchill v. Suter 4 Mass. 156. Widgery v. Munroe 6 Mass. 449. Jones v Coolidge 7 Mass. 199. Manning v. Wheatland 10 Mass. 502. Worcester v. Eaton 11 Mass. 368. Clarke v. Waite ib. 439. Butler v. Damon 15 Mass. 223. Hartford Bank v. Barry 17 Mass. 96. Packard v. Richardson ib. 126. Winton v. Saidler 3 Johns. Ca. 185. Mann v. Swan 14 Johns. 270. Coleman v. Wise 2 Johns. 165.
2. They contended that the rule was applicable to the case at bar because the note and mortgage formed but one contract, the debt being the principal subject, and the security only an incident, and partaking of the character of the principal which was a negotiable paper. Green v. Hart 1 Johns. 580. Runyan v. Mersereau 11 Johns. 534.
3. The tenant's purchase, though in terms a bargain and sale of the whole estate, amounted to nothing more than an equity of redemption; and the holder of such an estate is not permitted to avoid the mortgage on the ground of usury. Green v. Kemp 13 Mass. 515. Bearce v Barstow 9 Mass. 48. Bull. N. P. 224.
Greenleaf and Hill for the tenant, contended for the admissibility of the mortgagor to prove the usury, under the general rule that all persons, not affected by interest or crime, are competent witnesses. The only exception to this rule was established to exclude the party to a negotiable security from testifying that it was originally void; and this on the ground of public policy; as in Churchill v. Suter. Its application to the case of the grantor, in a real action in which the validity of a pretended title under him was the only point to be tried, was expressly rejected in Loker v. Haynes 11 Mass. 498; and such is the case at bar. If the grantor was admissible in that case, in order to defeat an absolute conveyance made by himself, a fortiori in this, to shew usury in a conveyance upon condition. Nor does the present case fall within the principle of Churchill v. Suter, because the mortgage does not belong to the class of negotiable securities. It is a distinct and independent transaction, the fate of which does in no wise affect the note; and it is governed by the same general principles which apply to the pledge of goods. It is the note alone which is known among merchants, and the preservation of mercantile confidence in this instrument, and not in any other, is the sole ground of the exception.
To shew that this defence was open to the tenant, he having purchased the whole estate, they cited Green v. Kemp 13 Mass. 515. Hills v. Elliot 12 Mass. 26.
OPINIONThe opinion of the court was read by the Chief Justice at the following November term, as drawn up by WESTON, J.
That a party to a negotiable instrument shall not be received as a witness to prove the same to have been originally usurious and void, in an action brought upon such instrument, is a rule which has for a long time been so uniformly adhered to and practised upon, in this State and in Massachusetts, that we cannot suppose it to have been the intention of the counsel for the defendant to call it in question, in the case before us. The point now raised is founded on the assumption, that the rule is applicable only where the action is brought upon the negotiable instrument itself. But we do not find upon examination, that the rule can be considered as thus qualified. In all the cases cited to this point, from the Massachusetts reports, the proposition appears to be laid down in general and unqualified terms, that the party to a negotiable instrument, is not a competent witness to prove it to have been originally void. These were, it is true, actions brought upon the instruments themselves; and the rule will generally be applied in practice to cases of this class. The decisions in Massachusetts are deduced from the case of Walton & al. assignees of Sutton v. Shelley, 1 D. & E. 296, which is not distinguishable in principle from the one under consideration.
It was an action upon a bond, given by the defendant to Sutton ; to which there was a plea of usury. It was proved that...
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