dissenting.
Though there be usury in the contract between Smith and Gardner, yet, when Scofield purchased from Gardner, an allowance was reserved by him out of the price he was to pay for the lot for the purpose of discharging what Gardner owed his vendor, and he agreed so to do. With this agreement existing, and the amount reserved being in the hands of Scofield, Gardner permitted the judgment to go against him. In my opinion, Scofield cannot now set up the usury in the original contract with Smith, and thus leave a large portion of the judgment against Gardner to be paid by him. The purchaser from Gardner ought not thus to be allowed to avail himself of a statute not intended for his benefit, and to obtain an interest in land which his vendor never agreed or intended to transfer to him. Post vs. Dort and the Bank of Utica, 8 Paige’ Chancery Reports, 639; Given vs. Kemp, 13 Massachusetts, 574; Morris vs. Floyd, 5 Barb. 130. These decisions fully sustain the foregoing position, and, besides, it is consistent with reason, justice and principle.
If there be any special equitable facts connected with Scofield’s purchase from Gardner, which would entitle him to such a right, they should have been charged in the bill and proved at the trial. The mere statement in the bill that Gardner told complainant that his creditor would take Confederate money, is not sufficient. He does not state that he was thereby induced to give more than he otherwise would have promised, or that the price of the land was increased on account of its being estimated in that currency, nor how he was, or could have been, in any way injured by such a statement on the part of Gardner, nor does he charge that the statement was false, or fraudulent, or that he ever offered to pay the debt in Confederate money, or that he was notified it would not be received.
On the trial there was indeed no testimony, arid none offered, that such a representation had ever been made by Gardner, nor does the answer of the administrator aid complainant. *79Under the bill and the evidence, the case was simply that the complainant bought of Gardner nearly the whole of the lot, agreeing to pay, and reserving of the price he was to give, a sufficient amount to pay Gardner’s debt. So far as it appears from the evidence, complainant asks that the property in his possession shall not be forced to pay the unpaid portion of the debt now in judgment against Gardner, thus leaving sueh portion open to be enforced out of Gardner, whilst he demands that he be allowed to. retain the amount he reserved to' pay the same.
Although the Court may have erred in its charge to the jury, that there was no usury in the contract between Smith and Gardner, yet, under the facts shown by the record, the complainant could not set up the usury, and the verdict being such as the jury would have been compelled to render under the evidence, I think the judgment should be affirmed.