If the land had ever belonged to the defendant and he had borrowed $1,000 of the plaintiff, and conveyed the land to him to secure its repayment, with an understanding that the defendant was to remain in possession, under a lease from year to year, at a rent of $100 per annum until he was (160) able to repay the money, there would be no difficulty in dealing with the case in a court of law, provided the jury were satisfied that it was a contrivance to cover a usurious lending. For the note now sued on would be void. The lease also would be void, and the title remain in the defendant, who would be under no obligation to pay rent for his own land.
But the land never belonged to the defendant, and it is difficult in a court of law to sustain the view taken of the case in the court below. If it be a cover for usury, it is a cunning and subtle contrivance which can only be reached in a court of equity, and disproves the confident assertion of my Lord Coke, "that the wit of man cannot devise a mode whereby to evade the statute of usury." The title passed from McLure and Murray to the plaintiff, upon his paying them the balance of the purchase money, which the defendant was unable to pay. No usury is alleged between McLure and Murray and the plaintiff, so that deed cannot be void, and the plaintiff has the title, subject to a right on the part of the defendant to hold the possession at a rent of $100 per annum, and to call for the title whenever he repays $1,000 to the plaintiff. The plaintiff demands payment of the note now sued on. The defendant says the note is void, being given for rent under an usurious lease, which was contrived as a mere cover. Well, consider the lease void. The plaintiff is entitled to the possession of the land, being in law the owner, and can recover it in ejectment (King v.Murray, 28 N.C. 62) and can recover mesne profits, which will be equal to and perhaps exceed the annual sum of $100. How can this be otherwise in a court of law? He is admitted to be the owner of the land, and must be allowed to take possession, or to be paid for the use and occupation. The defendant, then, is *Page 123 compelled to depend upon the lease; there is no other ground upon which he can stand, and, of course, if he abides by the lease he must pay the rent. Another feature in this case (161) which shows that a court of law cannot give redress is that the plaintiff has no obligation upon the defendant for the $1,000. If the defendant chooses to pay it, he can, in a court of equity, call for the legal title; if he does not choose to do so, the plaintiff cannot compel him, but is content to keep the land, so that the relation of debtor and creditor does not exist, and there cannot well be a forbearance to sue where there is no debt. By way of further illustration: A informs B that C has a tract of land for which he will take $1,000, and agrees that if B will buy the land, he will lease it at an annual rent of $100, with the privilege of buying the fee simple when he is able to pay $1,000. B pays C the price and takes a deed, and leases to A at $100. There is no usury between B and C, for it was a purchase, nor between B and A, for it was a lease; and yet B is receiving 10 per cent. Vary the case by supposing that A had contracted to buy the land from C at $1,500, and had paid $500. Being unable to pay the balance, B, at his instance, pays it and takes the title, giving A a lease at an annual rent of $100, with the privilege of calling for the fee simple by paying B the $1,000. B was induced to buy for the sake of getting a safe investment at 10 per cent. This is the case we have under consideration. Consider the lease void at law for usury, the title is in B, and he has a right to possession or to rent. In a court of equity A can insist that, by reason of his original contract, on the payment of the $500, he has a part of the equitable estate, and that B helds the title in trust to secure the payment of the $1,000, and then in trust for A, who has a right to redeem on payment of what is bona fide due, with legal interest. Thorpe v. Ricks,21 N.C. 613. A court of equity can give adequate relief, but a court of law cannot take notice of the interest of the original purchaser, because he never had the legal estate. (162)
We are of opinion that there was error in the court below, because that court could not take notice of the equitable estate of the defendant, but must look upon the plaintiff as the owner of the land, and, as such, he was entitled to a judgment for his rent; and the court ought to have instructed the jury that there was no evidence to sustain the plea of usury.
PER CURIAM. Judgment reversed, and a venire de novo awarded. *Page 124