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JOHN LLOYD, PLAINTIFF IN ERROR v. CHARLES SCOTT

January 1, 1830

JOHN LLOYD, PLAINTIFF IN ERROR
v.
CHARLES SCOTT, BAILIFF OF WILLIAM S. MOORE, DEFENDANT.



[Syllabus from pages 205-207 intentionally omitted]

THIS was an action of replevin brought by the plaintiff to replevy certain goods and chattels which the defendant, as baliliff of William S. Moore, had taken upon a distress for rent claimed by the said Moore to be due upon certain houses and lots in Alexandrix, owned and held by the plaintiff. The sum for which distress was made is five hundred dollars. The declaration is in the usual form; and the damages claimed one thousand dollars.

The defendant filed his cognizance, in which he acknowledges the taking of the goods, &c. in the declaration mentioned, and states that a certain Jonathan Scholfield was seised in fee of four brick tenements and a lot of ground in the town of Alexandria, and being so seised, he by his indenture, dated the 11th of June 1814, of which deed profert is made, in consideration of five thousand dollars, by the said William S. Moore paid to him the said Jonathan Scholfield, he granted, bargained and sold to him, the said William S. Moore, one certain annuity or yearly rent of five hundred dollars, to be issuing out of and charged upon the said four brick tenements and lot of ground, to be paid to the said William S. Moore, his heirs and assigns, by equal half yearly payments of two hundred and fifty dollars each, on the tenth of December and on the tenth of June in each year for ever thereafter. To have and to hold the said annuity or rent charged and payable as aforesaid, to the said William S. Moore, his heirs and assigns, to his and their only proper use for ever. It also states that the said Jonathan Scholifield, for himself, his heirs and assigns, did, by the said indenture, among other things, covenant with the said William S. Moore, his heirs and assigns, that he, the said Scholfield, his heirs and assigns, would well and truly pay and satisfy to him, the said Moore, his heirs and assigns, the said annual rent of five hundred dollars by equal half yearly payments for ever: and if the rent should not be paid as it became due, that on every default it should be lawful for the said Moore, his heirs and assigns, to make distress for it. That the said William S. Moore was seised of the said rent on the said 11th of December 1814, and has since remained seised thereof.

The cognizance further states, that on the 29th of October 1816, the said Jonathan Scholfield, by his deed of bargain and sale, conveyed to the said John Lloyd the plaintiff, for ever, certain tenements and lots of ground in the said town of Alexandria, whereof the said four brick tenements and lot of ground before mentioned, on which the said distress was made, was parcel; subject, by the terms of the said deeds, to the payment of the said annuity or rent of five hundred dollars to the said William S. Moore, his heirs and assigns. That the said John Lloyd has been ever since seised and possessed of the same; and that on the 10th of June 1824; two hundred and fifty dollars, a part of the said rent was due, and on the 10th of December 1824, two hundred and fifty dollars, the balance of the said annual rent, was due and unpaid to the said William S. Moore, for which said sum of five hundred dollars, the said defendant, as bailiff aforesaid, levied a distress. It concludes by praying judgment for one thousand dollars, being double the rent in arrear and distrained for.

By the deed from Scholfield to Moore, he, Moore, for himself and his heirs and assigns, covenants with Scholfield, his heirs and assigns, that if he, the said Scholfield, his heirs or assigns 'shall at any any time after the expiration of five years from the date of the deed, pay to the said Moore, his heirs or assigns, the sum of five thousand dollars, together with all arrears of rent and a rateable dividend of the rent for the time which shall have elapsed between the half year day then next preceding and the day on which such payment shall be made, he, the said Moore, his heirs and assigns, will execute and deliver any deeds or instruments which may be necessary for releasing and extinguishing the rent or annuity hereby created, which, on such payments being made, shall for ever after cease to be payable.'

By the same deed Jonathan Scholfield covernants that he was then in his own right seised in fee simple of the premises charged as aforesaid, free from any condition or incumbrance other than which is specified and provided for in a deed from him, Scholfield, to Robert I. Taylor, dated the day before the date of the deed to Moore.

The said Scholfield further covenants for himself, his heirs and assigns, that he 'will for ever hereafter keep the buildings which now are, or hereafter may be erected on the premises charged, fully insured against fire in some incorporated insurance office, and will assign the policies of insurance to such trustee as the said Moore, his heirs or assigns may appoint, to the intent that if any damage or destruction from fire shall happen, the moneys received on such policies may be applied to rebuilding or repairing the buildings destroyed or damaged.' There is also a covenant on the part of Scholfield, for a further conveyance to carry into effect the intention of the parties; and also a warranty on his part, to warrant and defend the said annuity or rent, to the said Moore, his heirs or assigns, against any defalcations or deductions for or on account of him the said Scholfield, his heirs or assigns.

To this cognizance, the plaintiff, after praying oyer of the indenture from Scholfield to Moore, demurred specially; and assigned the following causes:

1. Because the deed of indenture from Jonathan Scholfield and Eleanor his wife to William S. Moore, in the said cognizance mentioned, shows upon the face of it a corrupt and usurious contract between Jonathan Scholfield and William S. Moore, altogether void in law, and entirely incompetent to justify the taking of the said goods and chattels in the plaintiff's declaration mentioned.

2. Because the essential parts of the indenture are not set forth in the cognizance.

3. Because the indenture is variant, and different from that alleged in the cognizance.

4. Because the whole cognizance is void and insufficient in law to justify the taking of the goods and chattels in the declaration mentioned.

At the same time the plaintiff filed four pleas. In each of which pleas he craves oyer of the deed of indenture in the cognizance mentioned, which was granted to him.

The first plea states, that before the making of the indenture, that is to say, on the 11th of June 1814, it was corruptly agreed between Scholfield and Moore, that he, Moore, should 'advance' to Scholfield, the sum of five thousand dollars, and in consideration thereof, that Scholfield and his wife should grant, by a deed of indenture, duly executed and delivered to Moore, his heirs and assigns for ever, a certain annuity or yearly rent of five hundred dollars, to be issuing out of and charged upon a lot of ground, and four brick tenements and appurtenances thereon, which lot is particularly described in the said plea, and stated to be in the town of Alexandria: which annuity or rent of five hundred dollars was to be paid to Moore, his heirs and assigns, by equal half yearly payments of two hundred and fifty dollars, on the 10th of December and on the 10th of June for ever thereafter. It was further corruptly agreed, that he, Scholfield, in and by the deed, should bind himself, his heirs, executors, administrators and assigns to Moore, his heirs and assigns, that Scholfield would well and truly pay to him, Moore, his heirs and assigns, the said rent or annuity of five hundred dollars, by equal half yearly payments, on the 10th of June and the 10th of December in each year for ever thereafter, as it became due. It further states, if the same should not be paid as it became due, the right of distress for it is reserved to Moore, his heirs and assigns. The plea also states, if sufficient property could not be found on the premises to make the said rent or annuity, after the expiration of thirty days from the time the same became due, it should be lawful for Moore to enter on the premises, and to remove Scholfield, his heirs and assigns, and for him, Moore, his heirs or assigns, to possess and hold the same as his or their property.

The plea further states, that it was corruptly agreed between Scholfield and Moore, that he, Scholfield, should further covenant in the said indenture, that he, Scolfield, was seised at the time of making the deed in his own right, in fee simple in the premises, free from any condition or incumbrance other than such as was specified in a deed from him to Robert I. Taylor; and that he would thereafter keep the buildings fully insured in some incorporated insurance office, and assign the policies to such trustee as Moore, his heirs or assigns should appoint; and that he would make any other deed for a further assurance of the title to the premises; and that he would warrant and defend the title of Moore to the rent or annuity. It is also stated in said plea, that Moore did further corruptly agree, that he would, in the indenture, covenant for himself, his heirs or assigns, with Scholfield, his heirs and assigns, that if he, Scholfield, his heirs or assigns, should at any time thereafter, at the expiration of five years from the date of the indenture, pay to Moore, his heirs or assigns, the sum of five thousand dollars, together with all arrears of rent, and a rateable dividend of the rent for the time which should have elapsed between the half year's day then next preceding, and the day on which such payment should be made, he, Moore, his heirs and assigns, would execute and deliver any deeds or instruments which might be necessary for releasing and extinguishing the rent or annuity.

The plea then avers, that on the 11th of June 1814, in pursuance and in prosecution of this corrupt agreement, William S. Moore did advance to Jonathan Scholfield, the sum of five thousand dollars, and that Scholfield and his wife, and Wiliam S. Moore did make, seal and duly deliver to each other respectively the said deed as their act and deed, which was duly acknowledged and recorded; that the deed was made in consideration of money advanced upon and for usury; and that there has been reserved and taken above the rate of six dollars in the hundred, for the forbearance of the sum of five thousand dollars, so advanced as aforesaid, for the term of one year. The plea concludes with a verification, and prays judgment for damages for the unjust taking and detention of the goods, &c.

The second plea is in all respects like the first, except it states that the agreement was, that Moore should 'lend' to Scholfield five thousand dollars. It then states that the parties agreed a deed should be made containing all the covenants set forth in the first plea. It then avers theat in pursuance and in prosecution of this corrupt agreement, Moore did advance to Scholfield, the sum of five thousand dollars; and that Scholfield and wife, and Moore, made and executed the deed aforesaid, in pursuance of this corrupt agreement, which was duly acknowledged and admitted to record. And that the deed was made in consideration of 'money lent upon and for usury:' and that by it there has been reserved and taken above the rate of six dollars in the hundred, for the forbearance of the sum of five thousand dollars so lent as aforesaid, for the term of one year. This plea concludes as the first does.

The third plea is more general than the first and second. It states, the before the making of the indenture, that is to say, on the 11th of June 1814, it was corruptly agreed between Scholfield and Moore, that he, Moore, should 'advance' to him, Scholfield, the sum of five thousand dollars, upon the terms and conditions, and in consideration of the covenants and agreements in the indenture mentioned and contained; and that in pursuance of this corrupt agreement, and in the prosecution and fulfilment of the same, Moore did advance to Scholfield the sum of five thousand dollars, and they, Scholfield and Moore, did make, seal, and duly deliver the deed to each party respectively, as their act and deed. And that the deed was in consideration of money advanced upon and for usury, and that by the indenture there has been taken and reserved above the rate of six dollars in one hundred, for the forbearance of the sum of five thousand dollars, so advanced as aforesaid for the term of one year. This plea concludes as the first does.

The fourth plea is like the third, except it is stated that the agreement was to 'lend' five thousand dollars upon the same terms stated in the third plea. It then avers, that in pursuance and in execution of the corrupt agreement in the indenture mentioned, Moore did 'lend' to Scholfield the sum of five thousand dollars; that the deed was duly executed by the parties and recorded; that it was made in consideration of money lent upon and for usury, and that by the said deed there has been reserved and taken above the rate of six dollars in the hundred for the forbearance of the sum of five. thousand dollars, so lent as aforesaid, for the term of one year. This plea concludes as the others do.

To each of these pleas the defendant demurred specially, and assigned for causes:

1. That the said pleas do not set forth with any reasonable certainty the pretended contract which is alleged to have been usurious, and do not show an usurious contract.

2. That they do not state the time for which the said pretended loan was made.

3. That they do not state the amount of interest reserved or intended to be reserved on the said pretended contract.

4. That they do not set forth any loan or forbearance of any debt.

5. That they neither admit nor deny the sale and conveyance of the premises charged with the said annuity or rent, to have been made by Jonathan Scholfield to the plaintiff.

Upon the demurrer to the cognizance, and on the demurrer to the pleas, the circuit court rendered judgment for the defendant for one thousand dollars, the double rent claimed in the cognizance, and costs.

The plaintiff sued out this writ of error, and before this court assigned for error,

1. That the deed which forms a part of the cognizance is on its face usurious.

2. That the pleas set forth, with sufficient certainty, a spurious contract.

The case was argued by Mr. E. J. Lee and Mr Swann, for the plaintiff in error; and by Mr Jones and Mr Taylor, for the defendant.

For the plaintiff, it was contended; that the deed of Scholfield to Moore, of the 11th of June 1814, was a contract to pay five hundred dollars per annum, for five years, for the use of five thousand dollars, which is equal to ten per cent per annum. The object of this device was to evade the statute against usury. The deed does not set forth the purchase of an annuity; but Scholfield being seised of the property in fee, receives five thousand dollars from Moore as a loan, and then grants to Moore a rent of five hundred dollars per annum, for the use of the money. The stipulations in the deed are to pay the rent half yearly, for five years; not to redeem the property by paying the five thousand dollars; and after that time, on his continuing to pay the five hundred dollars, the property is to remain charged with the same. The deed gives a right of distress and entry on the premises, and stipulates that the property shall be kept in repair, and the buildings insured at the expense of Scholfield and his assigns. If any of the houses shall be destroyed by fire, they are to be rebuilt, and there is a covenant for the payment of the rent against any defalcations or deductions by Scholfield. The whole sum payable by Scholfield in five years for interest, insurance, taxes and repairs, including the five thousand dollars, would amount to eight thousand seven hundred and fifty dollars; a large excess beyond legal interest.

There must have been great distress to induce such a contract; and upon its face it exhibits all the features of usury; although there is no stipulation which plainly expresses the contract to be one of mere loan, with a compensation for forbearance beyond what is lawful.

It is not necessary that it should appear on the face of the deed that it was a loan or forbearance. If this is the result, it will authorise the application of the statute.

To show that the transaction on the face of the deed, though it assumes the form of a ground rent, is a usurious contract, cited, 1 Inst. book 3, sec. 534. 5 Co. Rep. 69. Lawley vs. Hooper, 3 Alak. 278. Flayer vs. Sir Brownlaw Sherard, Ambler, 19. 3 Barn. & Ald. 664. 4 Camp. Rep. 1. Powel vs. Waters, 17 Johns. Rep. 176. 5 Randolph's Rep. 347. Barnard vs. Young, 17 Ves. 44.

The preceding cases show, that where there is a covenant either on the part of him who advances the money to accept of repayment, or of the borrower to repay it; or where the right to repay the money is reserved by the contract; that the money was advanced as a loan, and a contract entered into for its repayment, it is usurious.

But if it is urged, that this is a contract for the sale of a rent charge: the answer is, that at the time the contract was made no rent existed. It is an original grant of an annual rent to be issuing out of, and to be charged on certain houses.

Technically, an annuity is not a ground rent. 2 Blac. Com. 41, 461. Co. Lit. 144.

Is the usury properly pleaded?

It is said that the contract is not set forth with reasonable certainty in the pleas. But the pleas bring out the whole deed in which the contract is shown; and thus the defendant is fully informed what the contract is, upon which the allegation of usury arises.

An indenture set out upon oyer, becomes a part of the plea. 1 Chitty, 664. By becoming a part of the plea, they set out the contract, and by so doing the defendant is informed of what he is to answer.

It is admitted, that in a plea of usury, it is necessary to set out the facts with such certainty, as that they can be understood by the party to answer them, by the jury who are to ascertain them, and by the court who are to give judgment upon them. 1 Chitty's Plead. 236, ...


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