Page:Federal Reporter, 1st Series, Volume 6.djvu/477

 MATTHEW8 V. WARNBE. 465 �mly the assignment of it to Upham. It was given, accord- ing to this theory, to secure certain notes, and the fraud con- aisted in a false statement that Nathan would assign with it ft corresponding amount o£ the notes ; whereas, he, in fact, aegotiated those iiotes to other persons, thus creating a double liability. But the mortgage itself, having been lawfuUy given for the notes, unless avoided by usury, stands as their aecurity. Edward Matthews is in bankruptcy, and the notes' are still outstanding, unpaid, to a greater amount than $200,- 000. Therefore, the only persons who can at present com- plain that the mortgage has been separated from the notes are the holders of them. Neither Edward Matthews nor his wife have an equity apart from these holders; and, if they can maintain a bill, can only do so by making these persons parties, and by asking for a wholly different relief from that which the plaintiff now asks. �Were the bond and mortgage wholly void, from the begin- ning, for usury? If they were, I should incline to think Edward Matthews estopped to show it ; but, at ail events, one who asks relief in equity on this ground, must first offer to repay the money actually lent. As a general proposition this is admitted ; but there is a statute in New York which author- izes the borrower to obtain such a surrender, in equity, with- out payment. This statute is so strictly construed that it has been held not to apply to an assignee in bankruptcy of the borrower, {Wheelock v. Lee, 15 Abb. Pr. [N. S.] 64; S. C. 64 N. Y. 242 ;) nor to a purchaser of an equity of redemption of land upon which there is an usurious mortgage, (Bissell v. Kellogg, 65 N. Y. 432.) It seems to me, however, that if a borrower pledges the property of a third person for his debt, that person must be so far identified with the borrower as to haye ail his rights at law and in equity. If I say that Mrs. Matthe^^ is only a nominal holder for her husband, bound by hiSfObligations in respect to the property, how can I refuse her the same rights which he would have to the same prop- erty? However this may be, the statute of New York, which authorizes a borrower to obtain a cancellation of securities �wlthout payment, cannot bind a court of equity out of the v.6,no.5— 30 ��� �