Mumford alledges that his assignment of the mortgage to the Trust Company was illegal and void, on the ground of usury; and also on the ground that the company violated our restraining law, and its own charter. For these reasons he seeks by the bill to get rid of his bond and assignment to the company, and to have the master's deed executed to himself. Whatever objection there may have been originally to the transaction, I think Mumford is not now at liberty to say that the assignment was illegal and void. It is in direct conflict with what he did and said when he caused the bill to be filed for the foreclosure of the mortgage. He then not only used the name of the Trust Company as a necessary party to the bill, but he alledged, and swore to the truth of the allegation, that *Page 485 the mortgage had been "duly assigned" by him to the company. He stated further, in effect, the extent of their respective interests in the mortgage debt; thus showing why both he and the company were made complainants in the bill. On these allegations the cause proceeded to a hearing and a decree of foreclosure. A sale followed, and the property was bid off by the solicitor for the benefit of his clients. Every thing but a mere matter of form — the execution of a deed — was completed. The company was, in effect, paid its debt so far as the mortgaged premises would pay it; and if any thing remained after satisfying the company, it would go to Mumford to the extent of the last two installments of the mortgage debt, which belonged to him. The rights of the parties were fixed, and it was then too late for Mumford to say that there was no valid assignment of the mortgage, and that the company had no rights under the sale. He had not only alledged in a court of record, and sworn to the fact, that the mortgage was duly assigned: but on this basis he had acted and carried forward a judicial proceeding to a decree, and a final consummation, with the exception of the mere formal act of furnishing the proper evidence of the sale by a conveyance. There is no principle upon which he can now be allowed to stop short, and alledge that all he has said and done is false, and shall go for nothing. The company has the right, by affirming the sale, to consider its debt paid, if the land is of sufficient value for that purpose. This payment has been made by the voluntary act of Mumford: and money paid on a usurious debt can not be recovered back. Nothing but the excess beyond the loan and legal interest can be recalled.
If the company had foreclosed the mortgage without the concurrence of Mumford, he might perhaps still alledge that the assignment was void for usury, and treat the company as trustees for him. But that would be a very different case from this, where Mumford directed, and was a party to, the foreclosure suit, and where he continually affirmed the validity of the assignment, and carried forward the proceedings until they resulted in the satisfaction of the company's debt, so far as the mortgaged premises will satisfy it. A payment thus made by *Page 486 the voluntary act of the debtor, is a very different thing from one obtained by the creditor out of collateral securities, without the act or assent of the debtor.
If we assume that Mumford is right in any or all of the objections which he now urges against the assignment, the objections came too late. I am of opinion that the decrees of the courts below should be reversed, and the bill be dismissed.
JEWETT, J. also delivered an opinion in which he only considered the question whether the transaction was a sale of the six first installments of the Ingersoll bond and mortgage, or a loan by the Trust Company to the plaintiff of the sum which the latter received in the certificates of the company. He came to the same conclusion with McCOUN, J. that the transaction was a sale.
A majority of the judges were of opinion that the contract did not involve a loan, but was a mere sale and purchase of the six installments of the bond and mortgage; and upon the whole case the decrees of the vice chancellor and supreme court were reversed, and the bill directed to be dismissed.