*Den, ex dem. Wilkinson against Dodds.
An absolute deed of conveyance of real estate upon trusts, was not allowed to be set aside on the ground of usury.
This was an action of ejectment, for a lot of land in the city of New York.
The cause was tried before Mr. Justice Kent, at the New York circuit, in March last. The plaintiff proved that his lessor was in possession of the premises for one year and upwards, before the defendant came into possession, and that the defendant claimed to hold under or through the lessor. Upon this evidence the plaintiff rested his cause; and the defendant moved for a nonsuit insisting that he ought not to be put on his defence, which motion was overruled.
• The defendant then produced and proved a certain indenture, bearing date the 7th day of February, 1797, made between the lessor of the plaintiff, and Elizabeth his wife on the one part, and William Fosbrook on the other part, purporting to be a deed of trust, and reciting three several mortgages, one bearing date the 5th January, 1796, made by the lessor of the plaintiff to the defendant of the premises, for securing the payment of 400Z. and interest, on the 15th day of May next, one other mortgage bearing date the 14th June, 1796, of the premises, for securing the payment of the further sum of 600Z. and interest, on the 4th day of December then next, and another indenture of mortgage bearing date the 1.8th day of August, 1796, for securing to the defendant the further sum of 300Z. with the interest, on the 4th day of December next, as well of the premises as of twenty-five feet square, adjoining the rear end thereof, as also of the equity of redemption of another lot of land, which was subject to the payment of 500Z. by a prior mortgage to William Alexander. “ In consideration of which said several mortgages, and of the sum of 10s. by the said William Fosbrook to the said lessor of the plaintiff paid, «fee. the said lessor of the *196plaintiff, did by the said first mentioned indenture, [*159] grant, release, and convey to the said William *Fosbrook, for ever, (subject, nevertheless, to the mortgage aforesaid to theisaid William Alexander,) all and singular, the premises, &c. in the said several, mortgages described, upon trust, and that Fosbrook, his heirs and assigns, should permit and suffer the lessor of the plaintiff (by and with the approbation and consent of the defendant, his heirs and assigns, in writing, but hot otherwise,) at any time before the 1st day of May, then next to contract and agree with any person or persons whomsoever, either publicly or privately, for the sale in fee simple (subject to the said mortgage debt of 5001. and interest, so due to the said William Alexander as aforesaid,) of all the premises aforesaid, or any part thereof for cash, and that the said Fosbrook, his heirs and assigns, should and would ratify and confirm such contract and agreement, on receipt of the purchase money. And in case the lessor of the plaintiff should not make- and conclude any such contract for the sale of the whole of the' said premises before the said 1st day of May then next; then upon trust that the said William Fosbrook, his heirs and assigns, at any time thereafter, and on or before the 20th day of May then next, should sell and dispose of the said premises, or such part thereof as should not be contracted for as aforesaid, subject to the said mortgage debt of 5001. and interest so:due to the said William Alexander, at public vendue, for the best price or prices that could be had for the same, and the moneys arising from the sale of the premises aforesaid, either by the contract of the lessor of the plaintiff or otherwise, after satisfying the costs of the same indenture, and of such sales, he the said William Fosbrook, his heirs and assigns, should and would apply in the first plage to the payment of the three several mortgage debts first mentioned, and the interest thereon, unto the defendant, his executors,- administrators and assigns, and in the next place to the payment of the sum of 2061.15s. due to the defendant on a judgment, and of a sum of 251. due to John Sleght &. Go. for shingles; and after payment of the said several sums respectively, the *197surplus money, if *any, arising from such sales, [*160] should be paid to the lessor of the plaintiff, his executors, administrators or assigns.” It was again moved by the counsel on the part of the defendant, that the plaintiff should be called to produce further evidence, or be non-suited.
The plaintiff then called on the defendant to produce the. three several mortgages made by the lessor of the plaintiff and recited in the aforesaid deed of trust, and the defendant having refused to produce the same, the plaintiff offered William Alexander as a witness, to prove that the mortgages, which were part of the considerations of the said trust deed were usurious, and made to secure the payment of money lent to the lessor of the plaintiff at usurious interest, and also to prove that the trust to pay John Sleght & Co. 251. for shingles, (which it was admitted was not a usurious debt,) was fulfilled by the trustee. The plaintiff also offered to prove that all the premises mentioned in the trust deed, had been sold and conveyed by the trustee, in pursuance of the trust, to Quinten Millen, who had become a nominal purchaser, but in fact, had purchased for the benefit of the defendant, and had accordingly conveyed the premises to the defendant; to produce which conveyance the plaintiff had given the defendant notice.
Upon this, the judge at the trial ruled, that admitting the proofs offered by the plaintiff) the considerations expressed in the deed of trust were sufficient to sustain it, and showed a title out of I he lessor of the plaintiff, and, therefore, ordered the plaintiff to be called, and a nonsuit to be entered.
Evertson, for the plaintiff,
moved to set aside the non-suit, on the ground, that the considerations of the conveyance to Fosbrook, except as to the debts due to Sleght & Co. were usurious, and the conveyance, therefore, void, and that the debt to Sleght & Co. had been paid, and the trust being so far executed, no legal consideration remained to uphold the conveyance.
*Burr, for the defendant,
contended that the con- [*161] *198veyance was valid and not within the statute against usury, but that if it were within that' statute, the consideration, so far as it was founded on the debt due to Sleght & Co., • was not usurious, and being-good-in part, it was sufficient to support the conveyance; which could not be avoided by a partial and subsequent execution of the trust.