delivered the opinion of the court.
Buildings have been erected upon the lots conveyed as security in all of the loans mentioned in this case. If they are not in accordance with agreements between the parties, it is impracticable now to make them so. Hence the rights of the parties must be settled upon the existing facts and situation.
And first as to the parties. Alfred L. Ward was made a party defendant to said original bill, but was never served and did not answer. Appellee may file in writing in this court within ten days such a stipulation by Alfred L. Ward as shall bind him and fully protect appellant. It would seem that said Alfred L. Ward is now estopped and bound by this record, but such a stipulation will remove all question as to that.
As to the unknown owners of the notes. Appellant in his brief and argument says that he “ individually and on behalf of the legal holders of the notes referred to in the answer, appeared and answered the bill.” Also, “ that appellant is personally responsible for any loss they (purchasers of the notes) may sustain upon said loans.” Also, that, “ appellant himself has a sufficient interest and the necessary privity of contract to insist upon performance of the agreements.”
Assuming these positions and statements to be correct, and it does not lie in the mouth of appellant to hereafter deny them, the owners of the notes in question are before the court in so far as it is necessary that they should be in order to determine as between appellant and appellee their respective rights, duties and obligations to each other. Appellant should not be permitted to say that he appeared and answered the bill on behalf of the owners of the notes; that he is personally responsible for any loss they may sustain; that he is entitled to insist upon the performance by appellee of her contracts; that he is an agent acting for an undisclosed principal and custodian and active trustee of the fund, and entitled to act for the cestui que trust coupled with an interest on his part; that the money is in his hands to consummate the loans; and then say that because such undisclosed principals are not formally brought into court, the court can not adjudicate as between the appellant and the appellee; and this too, when appellant fails to disclose ■ the principals, he apparently being the only party to this proceeding who knows who they are. He nowhere states that he does not know who and where they are. If appellant is correct in his statements, such owners are bound by the decree herein. If he is not correct, still the court below had jurisdiction to adjudicate as between appellant and appellee. Appellant will not be permitted to play fast and loose as to whether such owners are or are not before the court, w-hen, by his own statements in his briefs, he appears in this case for and represents them. Whether as between appellee and said owners, the latter are bound by said decree, we do not assume to here determine.
After the master’s report and the objections ¡thereto bad been filed in the court below, appellant moved the court for leave to file amendments to cross-bill. That motion was dehied. We do not think that in denying this motion there was any abuse of the discretion reposed in the trial court. It was not error.
It is contended on the part of appellant that he is the active trustee of the holders of all the notes in all of the thirty loans, and that as such he represents such holders and their interests. Suppose that to be so, still that does not change the situation as to the rights of appellee. Suppose that all of these holders agree among themselves that the money in the hands of appellant, not paid over to appellee in the matter of the nine loans, should be used and applied in “ scaling down,” as asked in the prayer of the cross-bill, appellee is not bound by such agreement. We know of no rule of law b_y which appellee can be held to be bound thereby, or which would require appellee to assent thereto. Appellant represents such holders severally as well as jointly. Appellee’s obligations to said holders and each of them severally is not changed because they all choose the same agent and active trustee. ¡Neither can her rights be changed or abridged by the joint action or agreement of said holders to which she does not assent. We know of no principle of law or equity by which the holders of the notes in the twenty-one loans can sustain a claim upon the money in the hands of appellant on account of the nine loans without the consent of appellee. Their respective rights as against appellee are not changed because they are represented by the same agent and active trustee. The effect of the scaling down, as asked in the prayer of the cross-bill, would be to require appellee, without her consent and against her" protest, to accept loans upon her thirty pieces of property in the aggregate about $20,000 less than the amount agreed upon by her. This can not be done. The court has no power to make new and different contracts for appellee. The cross-bill was properly dismissed.
The first three of the loans described in the original bill are for five years, with interest at six per cent per annum. The other six of said loans are for three years, with interest at five per cent per annum. In all of said nine loans the interest reserved and the commissions, when taken together, amount to more than seven per cent per annum, the highest rate of interest allowed to be contracted for in this State. We are satisfied from the record as a whole that the commissions and interest contracted for should be taken together in considering this question, and that the contract was usurious. The appellant can not be allowed to collect or receive usury by simply calling the same commissions. There is no error in the finding and decree of the Circuit Court as to the charge for commissions.
It is also contended that the court below erred in fixing the amount to be paid by appellee to appellant in case of the return by appellant of the securities, and in fixing the amount to be paid by appellant to appellee in case such securities are not so returned, without a reference to a master to take the accounting. This point is not well taken. There were no complications as to any accounting. It was a very simple matter to fix the sums named. It would have been an unnecessary and useless expense and delay to have made such reference.
Assuming appellant’s contention to be correct that appellee failed to erect buildings of the cost and kind as agreed, upon the lots involved in said nine loans, it is impracticable to now make them so. What is the effect ? It constitutes a breach of the contract byappellee. Appellant refused to pay any more money on account of said loans because of such breach. He thereupon, in effect, elected to treat the contract as at an end. That was the situation when this bill was filed. If it be conceded that appellant’s contention is correct that appellee failed to erect buildings of the kind and value agreed upon, it does not follow that appellee has no rights in the premises which a court of equity will protect and enforce. Appellant should not and wrill not be permitted to keep the money and still have the ' notes and trust deeds outstanding as valid and binding. He says that he represents and speaks for the owners of said notes. If there was any damage arising from a breach of said contract, appellant might be allowed therefor, but none is charged or proven.
Appellant invokes the application of the rule that “ He that hath committed iniquity shall not have equity.” This is not a case for the application of that rule. Appellee is not here seeking to profit by her own default or breach of contract. Her position is, in effect, that if appellant insists that the contracts are still in force, that he must then perform on his part. He can not successfully contend that by reason of the breach on the part of appellee, he is not bound to perform, but that he may, at the same time, and in a court of equity, insist upon the performance of the contract by her. Appellee is entitled to have said notes and trust deeds canceled and released upon repaying the amount she has received on account thereof, or in default of such cancellation and release, to have paid over to her so much of said loans as she has not received which is still in the hands of appellant. That one or the other of these should be done, is provided by the decree, and appellant is thereby allowed to elect which shall be done.
If appellant elect to procure and return to appellee, duly canceled and released, the notes and trust deeds in said nine loans given, then the sum which should be paid to appellant by appellee should bear interest from the time it was received by appellee until paid. The decree, as entered, does not provide for the payment of such interest, and is in that respect erroneous. If appellant do not elect, as provided in said decree, to procure and return said notes and trust deeds, then appellant should pay to appellee the balance of said loans with interest thereon at the rate fixed in said notes, as provided by said decree.
It is objected by appellant that the court below, after finding that each of said loans is a separate and independent transaction, treats them as a whole, so that the entire sum to be due appellee upon all of them must be paid upon default in the production and cancellation of any of the papers. This objection is not well taken. Appellant says he represents all of the holders of such paper. All of the money is in his hands, and has been by him credited to appellee in bulk as one sum.
It seems to us to be unnecessary to remand this cause simply to correct the comparatively small item of interest upon the sum of §1,067.81 which appellee is decreed to pay to appellant in case the securities be returned to her, as provided by said decree. Appellee may execute and file in this cause in this court within ten days, and for the use of appellant, a stipulation entitled in this cause, promising and providing that in case it shall become the duty, or become the right or privilege of appellee, under said decree, to pay said sum of §1,067.81, that she will pay therewith interest thereon from the first day of October, 1895 (that being the date of the first of said nine loans), and in default thereof that said decree may be set aside, and in lieu thereof a decree" be entered in said cause by said Circuit Court in accordance with the prayer of said cross-bill.
If such stipulation be executed and filed by appellee as above provided, and if a stipulation be executed by said Alfred L. Ward and filed in this court as aforesaid, then an order will be entered affirming the decree of the Circuit Court.
Perceiving no error other than such as will be cured by the stipulations aforesaid, the decree of the Circuit Court will be affirmed upon the filing of such stipulations.
Affirmed.