628 SUPREME COURT OF ARKANSAS, Vol,. 34 Anthony vs. Lawson. ANTHONY VS. LAWSON. 1. USURY : How to avoid, in equity. He who comes into a court of equity for relief against a judgment, conveyance, Or other security, upon the ground of usury, must have paid or offered to pay what is really and bona lidc due from him, in accord. ance with the maxim that he who seeks equity must do equity. APPEAL from Lonoke Circuit Court in Chancery. Hon. J. W. MARTIN, Circuit Judge. Hallum,, for appellants. Trimble and Chaplitle, covtra.• HARRISON, J. This was a suit in equity, by Philip Lee Anthony and L. M. Anthony, his wife, against Henry C. Lawson and C. L. to enjoin the sale of certain lands imder a mortgage with power of sale.
VOL. 34] NOVEMBER TERM, 1S79. 629 Anthony vs. Lawson. The plaintiffs alleged, in their complaint, that the lands, which were the separate. property of the said L. M. An-thony, and of which there were about 1,770 acres, and worth $5,000—having been sold at a judicial sale for a. grossly inadequate price, and the planitiffs being allowed by the purchaser to redeem them by refunding to him the sum paid, they, on the fourteenth day of November, 1877, for that purpose, borrowed from the • defendants $410 for th irt y days, at si x per cent. interest; per month—for which: they gave them their note, including therein the interest: as pa rt of the princi pal—and, as security for the -note, it-deed (4. trust upon the lands; that when the note fell due they paid 8100 upon it; and, on the seventeenth day of Decemb 1 er S . 77, gave to the. defendant Lawson a new note, payable in thirty days, for $345.05—the balance. and inter-- - est on it at three per •cent. per month, and executed to hitt]: a mortgage. with power . of sale, on, the lands to secure it— and. took up the former note and deed; that Lawson. assigned this latter note, before maturity, to the defendant Kline. who was conversaiit with the. transaction, and knew that - the usurious interest was included in the note; and that the note- haviir become due. Lawson was about to sell the lands-under the power in the mortgage for its payment. They made in their complaint no offer to pay the sum borrowed. with legal interest, or to pay anything. The defendants demurred to the complaint, as not stating facts sufficient to constitute. a. cause of action. The court. sustained the demurrer, and dismissed the complaint. The plaintiffs appealed. Since . the appeal was taken, Philip _Lee Anthony has ' died, and the. suit has been abated as to him. It is a well settled and established rule, that he who
630 SUPREME -COURT OF ARKANSAS, [VoL. '31 Anthony vs. Lawson. comes into a court of equity for relief against a judt,ll eat, conveyance, or other security, upon the ground of Usury, must have paid, or offered to pay, what is really and bona fide due by him, in accordance with the maxim, that he who seeks equity must do equity. Ruddell et al. v. Amble, 18 Ark., 369; Pickett et al. v. Merchants' National Bank of Memplbis et al., 32 Ark., 346; Rogers v. Rathbun, 1 Johns. Oh., 367; Fanning v. Durham, 5 Johns. Ch., 122; Tiffany V. Boatman's Institution, 18 Wall., 375; 1 Story Eq. Ju., 64, e; Bisp. Eq., 222. But it is, however, insisted by the appellant, that as all contracts for a greater rate of interest than ten per cent. -per annum are, by section 13, Article XIX, of the Constitution of the State, declared to be void, as to principal and interest, a court of equity now has no authority to require, as a condition of relief, that the plaintiff shall pay what he justly owes the defendant. • When the case of Rucklell et al. v. Amble, supra, was de-cided--the statute, section 7, chap. 92, Gould's Dig. (which has been re-enacted—Act of February 9, 1875), made all such contracts void, and except as -an inhibition to the legislature to authorize a greater rate of interest, we are unable to see any more force in the constitutional provision than in the statute. The statute made them as wholly and entirely void as does the constitution. The doctrine, as to the interposition of courts of equity to relieve against such contracts, is most clearly stated by Judge Story: He says: "In cases of usury, this distinction has been adopted by courts of equity. All such contracts being declared void by the statute against usury, courts of .equity will follow the law in the construction of the statute. If, therefore, the usurer or lender come into a court of equity, seeking to enforce the contract, the court will refuse
VoL. 34] NOVEMBER TERM, 1879. 631 Anthony vs. Lawson. any assistance, and repudiate the contract. But, on the vther hand, if the borrower comes into a court of equity, seeking relief against the- usurious contract, the only terms upon which the court will ' interfere, ire, that the plaintiff -will paY the , defendant what is really and bona . fide: . due to deducting the usurious interest, and if the plaintiff do not make such offer in his bill, the defendant may demur to it, and the bill will be dismissed: The ground of this 'distinction is, that a court of equity is not- positively bound to interfere in such cases by an active exertion .of its powers; but it has discretion on the subject, and may prescribe the terms of its interference; and he who seeks equity .at . its hands, may well be required to do equity: And it is against conscience that the party should have full relief, at the same time, pocket the money loaned, - which may . have been granted at his own mere solicitation. For -then, a statute, made to prevent fraud and oppression, would be -made the instrument of fraud. But, in the other case, 'if equity should relieve the lender, who is plaintiff, it would be aiding a wrong-doer, who is seeking to make the court the means of carrying into effect a transaction manifestly -wrong and illegal of itself." 1 Story Eq. Jur., 301. There was no error dismissing the complaint; but should the appellant yet tender the sum borrowed, • with legal interest, she would, upon its refusal, be entitled to ask -the aid of the court, and have the sale of the lands enjoined., Affirmed. .
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.