have alrea.dy seen that neither the bonds nor the coupons created any personal liability. The three loaDs, evidenced as they are by the bonds, coupons, mortgages, and orders of the court, have no other or greater effect than if the county court had authorized the guardian to procure the money to rebuild, charging the ward's real estate with its repayment with interest at 9 per cent., payable semi-annually, and. the loans had been made under such authority. At the time the third Joan was made, the Mortgage company claimed that there was due it for interest on the principal of the first and second loans and interest on past due coupons, both at the rate of 9 per cent. per annum, $53,194.27. Powers, the guardian, at this time was a member of the Mortgage company's loan committee at Chicago, thus occupying inconsistent relations; and in his petition to the county court for authority to make the third mortgage, he admitted the correctness of this claim. While it was clear that if there was any foundation at all for interest on the past due coupons the rate should not have exceeded the statute rate of 6 per cent., the guardian seemed more mindful of his duty to the Mortgage company than to his ward, and allowed and paid 9 per cent. It is true this was claimed and allowed as interest on interest, and not as interest on the principal sums, but the excess over 6 per cent. was obviously unjust and illegal. Usury consists in the contracting for, receiving. or reserving a greater rate of interest on the principal sum than is allowed by law; while compound interest is the addition of the accruing interest to the principal, and the taking of interest on this interest. Courts decline to enforce contracts providing in advance for compound interest, not, however, because they are usurious, but on the ground that they tend to oppress the debtor, and are against public policy. Money once paid, however, for compound interest cannot be recovered back; and a Dote given for the payment of interest on past due interest is valid, and can be enforced. Kellogg v. Hickok, 1 Wend. 521; Stewart v. Petree, 55 N. Y. 621; Camp v. Blttes, 11 Conn. 487; Wilcox v. Howland, 23 Pick. 167; Mowry v. Bishop, 5 Paige, 98; Otis v. Lindsey, 10 Me. 315; Mosher v. Chapin, 12 Wis. 458. It is not to be presumed that a court, whose peculiar province it is to protect persons of tender years, would charge an infant's estate with compound interest. It was the order of the county court that gave effect to the contracts, and bound the infant's estate. It is true that the interest on the principal sums became due semi-annually, and that instruments in the form of coupons were attached to the bonds; but this of itself was not sufficient to show that the court intended to charge the estate with interest on the interest installments. It is plain that the Mortgage company demanded and received out of the $95,000 loan more than was due it as interest on the first and second loans, but it is claimed by counsel for the company that so far as the third mortgage related to interest, it was an agreement to pay the past due interest on the principal of the first and second mort-
UNITED STATES MORTGAGE CO. 'V. SPERRY.
gages, and interest on interest installments from the time they severally became due. It is a sufficient answer to this to say that it does not appear from the record that the county court authorized or assumed to authorize the guardian to pay compound interest on the first and second loans. The third loan embraced compound interest on the first and second loans, and more. The excess over 6 per cent., we have already seen, can be justified on no theory. If the exaotion of this excess did not constitute usury, it was because the parties thought 9 per cent. was allowable, and they did not contemplate usury. However this may have been, the court is at liberty to award such relief under the third. mortgage as will be equitable. The guardian in his answer denied the validity of the mortgages, and after attaining his majority, Kingsbury filed an answer in which he denied their validity, and endeavored to avoid payment of both principal and interest, although he had received the benefit of the Mortgage company's money. The mortgage company has been obliged to conduct a protracted and expensive litigation. If it had promptly enforced its remedy, the property charged would have been sold when its value was depressed, and for not more than the amount due on the three loans. Fortunately the premises will now sell for a sum largely in excess of the incumbrance. This is an admitted fact. The defendant should, therefore, be required to pay the Mortgage company a reasonable compensation for the use of its money. Interest will be allowed on the principal sums at 9 per cent., until the of November, 1877, when Mr. Le Moyne was appointed guardian, and thereafter on the third loan at a rate which will be equivalent to 6t per cent. on all the loans from the last named date.
NOTE. In Kellog v. Lavender, (Neb.) 18 N. W. Rep. 38, notes were given payable in one and two years, with 12 per cent. interest, payable annually, and the court held that the holders thereof were entitled to the rate provided tor, after as well as before maturity. The court say: "This view seems to be in accord with the recent decisions of the English courts, as collected by Chief Justice GRAY, in his very able and exhaustive opinion in the case of Uriion Institution for Savings v. City of Boston, 129 Mass. 82. In this case the learned judge cites all the cases, American and English, and reaches the same conclusion as that announced by Mr. Justice FIELD in Cromwell v. County of Sac, 96 U. S. til, that' the prepon derance of opinion it! in favor of the doctrine that the stipulated rate of interest attends the contract until it is merged in the judgment.' But the bestreasoned case, it seems to me, is that of Spencer v. Maxfield, 16 Wis. 178. The opinion of the court by Mr. Justice PAINE answers every objection, and leaves it perfectly clear to my mind that the rule as last stated is the correct one, and that none other ought to be adopted in this state." Where a promissory note by ternls fixes a legal rate of interest per annum, .. from date until paid," such note will draw interest at the agreed rate after as well as before maturity, and the judgment or decree rendered thereon will draw the same rate of interest. Bond v. Dolby, (Neb.) 23 N. W. Rep. 351. A promissory note, or other obligation containing an agreement for a special rate of interest, will, after maturity, draw interest only at the statutory rate unless the special rate is expressly agreed to be paid after maturity. Eaton v. Boissonnault, 67 Me. MO. Where there is a uniform rate of interest, and a conventional rate fixed by statute, a contract in writing to pay a debt, with interest at a given rate from a designated date, carries the conventional rate as well after as before maturity. Overton v. Bolton, 9 Heisk.762.
.A note payable one day after date, and bearing a conventional rate ofintereat greater t.111m the fegal rate, but containing no provision for the rate of interest after maturity, draws the same rate of interest after as before maturity. Shaw v. Rigby, 84 Ind. 875. A. pr!>miss.ory note payable within a year from its date, with a larger than the statutol'y rate of mterest, · per annum, from date," draws only the statutory rate of interest after maturity. Newton v. Kennerly, 31 Ark. 626. A contract to pay a sum certain at a future day. with interest at a conventional rate. nothing said as to the rate of interest after the principal sum becomes due, bears interest at the conventional rate until it becomes due, and from that time, upon theaggregate of principal aud interest, at the legal rate. Briggs v. 10 S. 0. 133. In an action upon a contract to pay a sum of money at a certain time, with interest at a specified rate, the creditor is entitled to recoveriuterest at that rate, not merely until the agreed time for payment of the principal. but uut·il it is actually paid or his claim for principal and mterest is judicially determined. Union Institution for Savings v. City of Boston, 129 Mass. 82. A contract to pay interest at a specified rate, but silent as to the rate after maturity. draws the conventional rate after maturity. Meaders v. Gray, 60 Miss. 400. A note payable one day after date, at a conventional rate of interest, beal'S that interest until paid. Casteel v. Walker, 40 Ark. 117. A sealed note, payable 12 months after date, .. with interest at per cent. per annum.interest payable annually," and described in a contemporaneous mortgage executed to secure it as a note, "with interest thereon at the rate of per cent. per annum till paid," draws the same rate of interest after maturity as before. Mobley v.' Davega, 16
S. C. 73.
A sealed promissory note. payable six months from date, with interest at the rate of 12 per cent. from date, bears the conventional rate of interest until paid, although not paid at maturity. Cecil v. Hicks, 29 Grat. 1. Where a note is payable on demand. with interest at 10 per cent., that rate of interest is recoverable up to the date of the judgment. Paine v. Caswell, 68 Me. 80.
POLLOCK 'V. BRAINARD
EVIDENCE-ANSWER IN EQUITY UNDER OATH-EVIDENCE TO OVERCOME.
In a suit for specific performance of a contract for the sale of land, where defendant, in his answer duly verified, denies that he received a telegram, forming part of the contract, "such as is copied in the complainant's bill;" and complainant testifies that he sent the telegram just as copied in the bill, and produces a copy made by himself at the time of sending it; and defendant, though sworn as a witness, and notified to produce papers, neither produces the telegram actually received, nor says a word about it in his deposition,-all the requirements of equity practice are complied with, and it must be taken as proved that such a telegram passed between the parties, and formed part of the alleged contract.
SPECIFIC PERFORMANCE-TENDER-REFUSAL TO PERFORM.
Where a party has flatly refused on his part to carry out the contract, a tender by the other party of performance is not necessary before bringing a suit for specific performance.
EVIDENCE LETTERS AND TELEGRAMS-
SAlliE-CONTRACT TO SELL LAND CERTAINTy-ACCEPTANCE.
On examination of the evidence and the letters and telegrams forming the contract to sell the land involved in this case, held. that the contract was sufficiently certain, that there was an acceptance by defendant of complainant's offer to buy, and that specific performance should be decreed.
In Equity. Barnes Bros. and Guy R. Wilber, for complainant. Groff ft Montgomery, for defendants.