1. Upon the facts appearing in the case, the contract between Burke and Gooch Pray was a New Hampshire contract. The loan which Gooch Pray made to Burke was in consideration of his sale of bricks to them at a price $1,050 below the market value. They "would not have made the loan but for the contemporaneous purchase of brick at this low price." The understanding that the payments upon the note were to be made in brick, which gave rise to Burke's hope or expectation of securing trade from Gooch Pray, formed no part of the consideration for the loan. The note was payable in money, and there was nothing in its terms from which such an understanding could be gathered. The advantage resulting from this sale was a $1,050 bonus, which, as a usurious payment, should be applied as of the date of the note in reduction of the principal thereof (P. S., c. 203, s. 3), unless Burke's right to the application does not pass to his assignee in insolvency.
The purpose of the legislature in enacting chapter 201 of the Public Statutes was to provide for the relief of insolvent debtors, and to insure an equitable distribution of their estates among their creditors. By its terms, all of the "debtor's property, not exempt from attachment," passes under the assignment. The right to sue for usurious payments is not included within the exemption, and the inquiry is whether such a right is "property" within the meaning of the statute, so that it passes by virtue of the assignment to the assignee.
A right to sue for a usurious payment is a chose in action, upon which judgment is as readily obtainable as upon any debt. It may be a substantial part of the debtor's estate, the collection of which may materially increase the assets from which the creditors must be paid. It is as useful and as available to the assignee as any other debts that may be due to the estate. It certainly is "property" within the common acceptation of the word, and appears to have been intended by the legislature to pass with other choses in action to the assignee of the debtor's estate.
Although this right to sue is personal in its nature (Gathercole v. Young, 61 N.H. 121, 123; Bank of Newbury v. Sinclair, 60 N.H. 100, 109; Savage v. Fox, 60 N.H. 17; Ladd v. Wiggin, 35 N.H. 421, 429), it does not die with the person, but survives his representative (Steele v. Franklin,5 N.H. 376), and may be assigned so as to pass to the assignee. Jordan v. Gillen, 44 N.H. 424, 426. *Page 574
Under a similar statute of insolvency, it has been held in Massachusetts that the insolvent debtor's right to sue for the usurious payment passes to his assignee. Gray v. Bennett, 3 Met. 522; Cutler v. Bubier, 4 Gray 588, 589; Tamplin v. Wentworth, 99 Mass. 63. The bonus of $1,050 resulting from Burke's sale of brick should be credited upon the defendants' loan as of the date when the note was made.
2. The $2,000 should not be applied to the payment of the note. No privity of contract between Gooch Pray and Burke arose in consequence of the indorsement of the qualified acceptance upon Sanborn's order. In effect, it was simply a refusal to accept the order according to its tenor, and became a proposition to Burke to credit him on his note with the sum named, instead of paying it as the order specified. Burke's assent to this proposition was essential before any obligation arose on the part of Gooch Pray to pay the order as proposed. It does not appear that Burke ever assented to their proposition, and the order must be regarded as though no acceptance had been indorsed thereon.
3. The last three items in the mortgagees' charges were properly allowed, and the exception thereto is overruled. They were incurred in the improvement of the yard, in absolute good faith, by Sanborn, under the belief that the title he had obtained from the mortgagees was a valid one (2 Wn. R. P. *583), and the improvements correspondingly increased the value of the property. The party who seeks to redeem is not the mortgagor, but his assignee in insolvency. When he redeems, it will not be to hold the property as the mortgagor might wish to do, but to convert it into money as a part of the debtor's estate. P. S., c. 201, s. 25. By so doing he will naturally receive back the amount of the disputed charges in the increased price which the property will bring, and those who are entitled to the assets of the estate will thereby receive all that they would have received had no such improvements been made.
Case discharged.
CHASE and PEASLEE, JJ., did not sit: the others concurred. *Page 575