Montany v. Rock

• Decision Date: 31 March 1847
• Citation: 10 Mo. 506
• Parties: MONTANY v. ROCK.
• Court: Missouri Supreme Court

10 Mo. 506

MONTANY

v.ROCK.

Supreme Court of Missouri.

March Term, 1847.

ERROR TO ST. LOUIS CIRCUIT COURT.

EAGER & HILL, for Plaintiff. 1. The circumstances show that the design of the defendant was to get the services of the slave for the use of the money; i. e., $6 in services for $3 33 interest, each month. The transaction was made to appear as a sale, to cover and disguise the usury. He who could exact the usury, could dictate the terms, and these were the terms the plaintiff was forced to accept. His favorite slave was surrendered with this receipt. Usury is prohibited and will avoid a deed at law. See Atwood v. Whittlesey, 2 Root's R. 37; Hammond v. Hopping, 13 Wend. 510-11; Lear v. Tarnell, 3 Marsh. (Ky.) 420; Wilhite v. Roberts, 4 Dana, 175. Any illegality of consideration, or fraud, will avoid a deed at law. Trustees v. Dickinson, 1 Dev. R. 189; Mann v. Eckford's Ex'rs. 15 Wend. 518; Parker v. Parmlee, 20 Johns. 134;Vrooman v. Phelps, 2 Johns. 177; Dale v. Rosevelt, 9 Cowen, 307; Paxton v. Popham, 9 East, 408; 1 Story's Eq. 261; Story's Com. 163; Russell v. DeGrand, 15 Mass. 35; Kemper v. Kemper, 2 Rand. 8; Cozzens v. Whittaker, 3 Stew. & Porter (Ala.) 329; Becker v. Vrooman, 13 Johns. 301; State v. Perry, 1 Wright, 662; Means v. Brickwell, 1 Hill (S. C.) 657; Murphy v. Trigg, 1 Mon. 72; Lindley v. Sharp, 7 Mon. 248, 252; Thompson v. Potter, 5 Litt. 74; Skinner v. Miller, 5 Litt. 84; Edrington v. Harper, 3 J. J. Marsh. 355; Moore v. Kay, 1 Beat 287. A receipt in full of all demands is not conclusive, and may be explained by parol proof. See Story, J., in Hardin v. Gordon, 2 Mason, 561. So in Maze v. Miller, 1 Wash. C. C. R. 328; Burrough v. Partridge, 3 Verm. 144; Wright v. Wright, 2 McCord, 192; Ensign v. Webster, 1 Johns. Ca., 145; House v. Low, 2 Johns. 378; Thorn v. White, Adm. Dec. 128; Fuller v. Crittenden, 9 Conn. 406; Jackson v. White, 1 Am. Dec. 179; Thompson v. Faussat, 1 Peters' C. C. R. 183; Putnam v. Lewis, 8 Johns. 389; Johnson v. Weed, 9 Johns. 310; Slangleter v. Hamm, 2 Ohio R. 271.

PRIMM, for Defendant. 1. That the plaintiff made out no case which could support his declaration. In every count, save the first, he alleges a borrowing of money, and a mere pledge of the slave as security, and to sustain them he proves a clear and distinct sale to Rock; that sale accompanied with possession in Rock. 2. The plaintiff endeavors to prove by Rock's declarations that this sale was only a mortgage, but the record does not show that the declarations were made prior to, or at the time of the execution of the bill of sale, so as to make them a part of the transaction. If Rock's declaration, as proven by the witness, Vai, was made after the sale, he is not legally responsible, because the declaration is without consideration. If the witness, Strachan's, testimony be construed to establish that Rock's declaration was made at the time of the agreement with plaintiff, it must also be taken as it was made. Rock said “that if plaintiff was able to redeem the slave with his own means, he should have the right to take her back, but he should not have the right to get the means anywhere else.” 3. Supposing the tender of money to Rock was a proper tender, it should have been made good by bringing the money into court, which was not done. 4. But the alleged tender was not sufficient, because: First, only $400 was tendered to Rock, when he was entitled to interest besides, for a period of nearly four months. Second, the tender was made by a stranger, with a stranger's funds, in which Montany had no interest and of which he had not even a possession. Third, under these circumstances, the tender was made in a manner which was at variance with the terms stated by Rock upon which the supposed right of redemption was to accrue. 5. The instruction given by the court was tantamount to an exclusion of the testimony offered by plaintiff to vary the terms of the bill of sale from Montany to Rock. Such testimony was not admissible. Greenleaf on Ev. 327, § 275 and following; Lane v. Price, 5 Mo. R. 101; Benson v. Pecbles, 5 Mo. R. 132.

SCOTT, J.

This was an action of trover, brought by the plaintiff against the defendant in error, to recover a female slave. The plaintiff conveyed to the defendant the slave in controversy by an instrument of which the following is a copy: “Received, St. Louis, August, 1843, of Philip Rock, the sum of $400, being in full for my slave Maria; the said Maria mulatto girl, aged 15 years; the said Maria slave for life.

L. MONTANY.”

Parol evidence was offered, tending to show that the transaction was only a mortgage, and designed as a security for the sum of $400,...