Pierson v. Mosher.

forty years. Now assuming that the fence was originally put up under an agreement that it was to be altered at some future time, in case it should be found, upon actual survey, not to be on the true line, that would not vary the law of the case. The agreement as such would have no force in reference to fixing the line; each party would have the same right to remove the fence, without as with the agreement; and the agreement could have no effect, except as evidence upon the question of acquiescence in the line as then adopted, and on which the fence was placed. The facts of the existence of the fence as a line, and the acquiescence in it as such for such a length of time being proved, notwithstanding the agreement, the law would determine the line of the fence to be the true line between the parties.

It is the long acquiescence which renders the practical location conclusive. In Baldwin v. Brown, (16 N. Y. Rep. 359,) the court say, "the acquiescence in such cases affords ground, not merely for an inference of fact, to go to the jury as evidence of an original parol agreement, but for a direct legal inference as to the true boundary line. It is held to be proof of so conclusive a nature that the party is precluded from offering any evidence to the contrary. Unless the acquiescence has continued for a sufficient length of time to be thus conclusive, it is of no importance. The rule seems to have been adopted as a rule of repose, with a view to the quieting of titles; and rests upon the same reason as our statute, prohibiting the disturbance of an adverse possession which has continued for twenty years." In all cases in which practical locations have been confirmed upon evidence of this kind, the acquiescence has continued for a long period, rarely less than twenty years.

No error, therefore, was committed by the refusal to charge as requested; and the charge was fully warranted by the case cited.

The fact of the plaintiff having removed the fence on the south side of the fifty acres, to conform to the survey of the

Price v. The Lyons Bank.

south line made in 1857, had not, I think, any materiality in this case. It would not have tended to prove any thing as to the line between the east and the west half of the fifty acres, or on the question of acquiescence in the line, according to the fence.

It follows that a new trial should be denied.

1

[MONROE GENERAL TERM, September 5, 1859. T. R. Strong, Smith and Johnson, Justices.]

PRICE VS. THE LYONS BANK and ROBERT B. SUTTON.

Where payees residing in the country, of promissory notes payable at a bank in Albany, consent to renew the same, at the request of the maker, on condition that he shall give a new note, payable in Albany, and pay the discount, with one half of one per cent in addition, for the difference of exchange between the two places, which is accordingly done, the transaction is not usurious. JOHNSON, J. dissented.

The fact that the renewal note is made payable at an Albany bank—even if it was the intention of the parties to secure to the payees more than legal interest will not affect the law of the case; it being lawful to exact the actual difference of exchange on the amount of the note, whatever was the intention in making the exaction.

A

PPEAL from a judgment entered upon the report of a referee. The action was brought to set aside, and have given up to be canceled, a bond and mortgage, made by the plaintiff to Sutton, one of the defendants, on the ground of usury. The Lyons Bank was an individual bank; Parshall & Westfall, as copartners, being the owners thereof, and conducting the business of banking, at Lyons, under the name and style of the "Lyons Bank." Parshall & Westfall put in an answer in their own names, and on the trial the complaint was amended, substituting them as defendants in the place of the Lyons Bank. It was claimed on the trial, and evidence was given tending to prove, that the bond and mortgage belonged to Parshall & Westfall from the beginning, and was

Price v. The Lyons Bank.

taken by them in the name of Sutton, to avoid the defense of usury. The consideration of the mortgage was the amount due on two promissory notes of $750 each, given by the plaintiff to Parshall & Westfall, with the interest thereon, and the costs of a suit commenced on these notes, and about $400 in money. To show that the consideration of the mortgage was usurious, the plaintiff proved that on the 6th of November, 1855, Parshall & Westfall held three promissory notes, previously discounted by them, against the plaintiff; two for $1000 each, and one for $2000, and all payable in the city of Albany. One of the $1000 notes became due on the 31st of October, and was protested; the other $1000 note became due on the 8th of November, and the $2000 note became due on the 6th of November. On that day the plaintiff made an arrangement with Parshall & Westfall to renew the two last mentioned notes; and by that arrangement he was to give a new note for $3000, payable in Albany at 22 days, and to pay the discount with one half per cent exchange, and the notes were to be ordered back from Albany, where they had been sent for collection, and surrendered to the plaintiff. The agreement was carried out. When the $3000 note became due, a further renewal was agreed on; and by this agreement the plaintiff was to pay $300 in money, and give three notes, one for $700, payable at 15 days, and two for $1000 each, payable at 30 and 45 days, in the city of Albany. The plaintiff was to pay the discount, and one half per cent exchange, and the $3000 note was to be ordered back as before, and surrendered to the plaintiff. The agreement was carried out, and the notes made as above stated. These three notes were subsequently and successively renewed, partial payments being made, until two notes of $750 each were given, and which became due in October, 1855. These notes were protested, and a suit was instituted by Parshall & Westfall upon them, which was discontinued. Subsequently a suit was brought upon the same notes, in the name of one Graham; Parshall being one of the plaintiff's attorneys. In this suit Price put in an

Price v. The Lyons Bank.

answer, without oath, denying generally the allegations of the complaint. This suit was discontinued when the mortgage was given; the notes and costs of the suit, as before mentioned, constituting part of the consideration of the mortgage. The defendants offered in evidence the defendants' answer in the case of Graham v. Price, which was objected to, and the objection overruled, and the plaintiff excepted.

After the testimony on the part of the plaintiff had closed, the defendants moved for a nonsuit, on the following grounds: That the discounting the note and purchasing the draft of $1000 on the 5th January, 1856, was a new and independent transaction, and had no relation to, or connection with, the former dealings between the plaintiff and the defendants Parshall & Westfall. It was an ordinary and legal transaction; and the fact that the plaintiff applied the draft to the payment of the note due at the Albany City Bank, February 21, 1856, does not in any manner connect it with the note so due. When the plaintiff received the drafts from these defendants, he could do with it as he pleased, and could either apply it to the payment of that note, or use it in his business, or in the payment of any other debt. So in relation to the discount and purchase of the draft on the 21st day of January, 1856, and to all the subsequent discounts and drafts. The settlement of the suit commenced by Graham, and the agreement thereupon to pay the notes upon which the suits were commenced, and the costs, was an admission by the plaintiff of the validity of the notes; and he cannot afterwards set up any defense to the securities taken in such payment, by reason of any defect or illegality in the inception of the notes. The settlement of the subject matter of the action between the parties is conclusive. It is the same as a trial and judgment upon the matters litigated, and a note, as any other security given by a party in such settlement, is valid, notwithstanding any defenses which might have been set up to the action, or have been established on the trial. And in this case, if the plaintiff, on the settlement, had given Graham his

Price v. The Lyons Bank.

own promissory note for the amount of the two notes in suit, together with the costs of the action, such note would be valid, and the plaintiff, in an action for its recovery, would not be permitted to set up any defense which might have been made to the two notes: the settlement is an estoppel, and the plaintiff cannot go back of it. The referee granted said motion, and nonsuited the plaintiff.

S. Mathews, for the appellant. I. The note for $3000 of the 6th of November, 1855, was clearly usurious. There was paid for the loan and forbearance of this sum, for 25 days, $29 and upwards, or a little more than 14 per cent. The three notes given in renewal of the $3000, namely, one of $700 and two of $1000 each, were also usurious. The two transactions were substantially alike, and in both cases the holder realized more than 14 per cent for the loan. (Seneca County Bank v. Schermerhorn, 1 Denio, 133.)

II. The two notes of $750 each, which formed the principal part of the consideration of the bond and mortgage in question, having been given in renewal of the above mentioned usurious notes, were also usurious, and rendered the security given in consideration thereof, void. (Reed v. Smith, 9 Cowen, 647.)

III. The evidence was quite clear that Sutton had no interest in the bond and mortgage. The declarations of Sutton, in connection with the other circumstances in the case, establish it; and the evidence is equally satisfactory that Graham never had any interest in the notes, but that they were sued for the benefit of Parshall & Westfall.

IV. But whether the notes had been transferred to Graham or to Sutton, or not, that circumstance cannot change or affect the rights of the plaintiff. (1.) The notes, being usurious, were void in the hands of either of those parties; and they having been transferred after due, the holders are chargeable with notice of every defense which the plaintiff could have made against Parshall & Westfall. They were not innocent