in so far as to declare that the complainant should only be required to pay what might have been recovered at law.

In Dickerson v. Thomas, 68 Miss. 156, it was held that a complainant, seeking to recover back usurious interest paid by him (the usurious contract having been fully executed), could recover only the excess above the legal rate. Certainly, under all our decisions, if the contract between the complainants and the defendant had been entered into in this state, and had been usurious under our laws, the complainants would be required to return the money they actually received from the defendant as a condition to securing relief in equity in a bill filed by them.

We cannot perceive any public policy of this state which is to be conserved by applying the rule prescribed by our statute, of forfeiting all interest, to a contract made in another state. This is not a suit upon the contract, and its terms and conditions furnish no standards by which the court is to be guided. The conscience of the court, its appreciation of what is just and equitable, not only here, but in New York and Tennessee, and everywhere, is the sole and sufficient test as to the terms upon which it will afford relief. The complainants got the money of the defendant, by their own showing. They now repudiate the contract by which it was secured, and seek the aid of the court to annul a security given, not alone for the usurious interest, but for the principal as well. Relief will be afforded, but only upon condition that complainants shall do equity; and by an unbroken current of authorities it is settled that equity, in a case like this, is to refund the money, with legal interest.

In none of the cases above noted, arising under our usury statutes, was the point made by demurrer that the complainants had not offered to do equity. As we have said, the questions were raised on appeal from final decrees on the merits. But in Deans v. Robertson, 64 Miss. 195, it is decided that a bill for relief is demurrable if it fails to show an offer by the complainant to do that equity without which the court will deny relief. The complainants should have tendered to the defendant the principal sum received by them, with legal interest thereon, and the tender being refused, should have brought the money into court, or offered so to do by their bill. It may be that the defendant will accept the offer when made. If it does, no resort to the courts may be necessary.

The case made by the complainants is not sufficient to up

hold their bill as one for an account. They know, or may know by proper diligence (so far as the bill shows to the contrary), what sum they received; they know what sum they have paid; and it is therefore but a matter of calculation to determine exactly what amount they should offer to pay.

It is proper to add that the stipulation in the notes and the deed of trust relative to the payment of an attorney's fee falls with the contract, of which it is a part. As we have said, the contract furnishes no guide to the court in determining what sum shall be paid by complainants. It is enough that they return to the defendant its money, with legal interest thereon.

Under the circumstances of the case, we think it improper to make a final disposition of the case here. The appeal was manifestly brought to settle its principles, and it may be that the complainants may desire to amend their bill, and tender to the defendant the money due. In order that an opportunity to do so may be afforded them, the decree will be reversed, and remanded to the court below, with directions to sustain the demurrer.

USURIOUS CONTRACTS — BY WHat Law GovernED. — A contract void by reason of the laws of the state where it was made and is to be performed is void elsewhere: Bank of Commerce v. Fuqua, 11 Mont. 285; 28 Am. St. Rep. 461, and note. A contract not usurious in the state where it is made, and where the payee resides, cannot be attacked for usury in the state where it is made payable: Staples v. Nott, 128 N. Y. 403; 26 Am. St. Rep. 480, and note, with cases collected, discussing by what law interest is governed. A promissory note is controlled as to the defense of usury by the laws of the state where made, dated, and payable, and not by the laws of the state where negotiated: Jewell v. Wright, 30 N. Y. 259; 86 Am. Dec. 372, and note; Olague v. Creditors, 2 La. 114; 20 Am. Dec. 300, and note. Parties to a con. tract having agreed upon a rate of interest valid in the state where the borrower resided, in the absence of anything to the contrary, they must be presumed to have contracted with reference to the laws of that state: Mott v. Rowland, 85 Mich. 561. For an extended discussion of the subject, see note to Morris v. Hockaday, 55 Am. Rep. 609.

EQUITY. HE WHO SEEKS EQUITY MUST DO EQUITY; therefore one who seeks to set aside a judgment improperly recovered against him must pay into court the sum which, by his own statements, he has shown himself to owe the plaintiff: Gregory v. Ford, 14 Cal. 138; 73 Am. Dec. 639. Where a person in peaceable possession of realty under claim of lawful title, but with really defective title, has in good faith made permanent improvements, the true owner, who seeks in equity to establish his title, must reimburse the occupant for his expenditures: Thomas v. Evans, 105 N. Y. 601; 59 Am. Rep. 519; Pratt v. Thornton, 28 Me. 355; 48 Am. Dec. 492; Dilworth v. Sinderling, 1 Binn. 488; 2 Am. Dec. 469. A party praying for the cancellation of a con. veyance must tender the money received thereon: Cates v. Sparkman, 73 Tex. 619; 15 Am. St. Rep. 806, and note. A court of equity will not relieve a

mo tgagor who, through negligence, fails to perform his contract, whereby the whole debt becomes due and payable according to the terms of the mortgage, unless he tenders or pays the whole debt: Noyes v. Clark, 7 Paige, 179; 32 Am. Dec. 621. Taxes paid by the purchaser upon a void sale, with interest and expenses, must be refunded by the heir, who comes into equity to disen. cumber his title: Nowler v. Coit, 1 Ohio, 519; 13 Am. Dec. 640, and note. Where a plaintiff wants a deed corrected in his own favor, equity will refuse him aid, unless he is willing that other mistakes therein should be corrected, which would be against his interests. He who seeks equity must do equity: Morisey v. Swinson, 104 N. C. 555.

EQUITY-RELIEF FROM USURIOUS CONTRACTS.

He who goes into a

court of equity seeking relief from a usurious contract must pay legal interest on the debt: Cook v. Patterson, 103 N. C. 127. The contrary is held in Lowe v. Loomis, 53 Ark. 454, which was a case where a deed absolute was given to secure the payment of a usurious loan, and a decree was made canceling the deed and restoring the land to the borrower, without requiring the payment of any part of the usurious debt or interest as a condition to relief. See also Long v. McGregor, 65 Miss. 70.

COURTS-COMITY. Evasions of usury laws are not countenanced; and when courts detect them, they will withhold any aid to those who make foreign contracts a pretense for exacting usury at home: McAllister v. Smith, 17 Ill. 328; 65 Am. Dec. 651, and note.

ATTORNEY'S FEES-VOID CONTRACT.

A counsel does not forfeit his

right to compensation for services by entering into a champertous contract: Rust v. Larue, 4 Litt. 412; 14 Am. Dec. 172,

LOUISVILLE, NEW ORLEANS, AND TEXAS RAILWAY COMPANY V. BLYTHE.

[69 MISSISSIPPI, 939.]

When

CONSOLIDATION OF RAILWAY COMPANIES, RIGHTS ACQUIRED BY. the legislature authorizes the consolidation of two or more railway companies, the consolidated company succeeds to the property of each of the companies held by it before the consolidation. EMINENT DOMAIN - CONDEMNATION OF LAND OF MINOR NOT NECESSARY WHEN GUARDIAN AND COMPANY AGREE.-A statute providing that the guardian of any infant, non compos, or insane person may agree with a railroad company upon the damages to be paid for land of his ward taken by it, or release his ward's claim for damages, dispenses with the necessity for the condemnation of the land in cases where the guardian and the company can agree.

CONSTITUTIONAL LAW-POWER OF LEGISLATURE TO AUTHORIZE GUARDIAN TO CONVEY WARD'S LANDS. The legislature has power to confer upon guardians the authority to convey to a railroad company the right of way over the lands of their wards. The power resides in it, as parens patriæ, to prescribe such rules and regulations as may be proper for the management, superintendence, and disposition of the property of persons under disability.

ENACTMENT OF LAW AUTHORIZING GUARDIAN TO CONVEY WARD'S LAND NOT EXERCISE OF JUDICIAL POWER. The enactment of laws authorizing guardians to convey the lands of their wards is not the exercise of judicial power by the legislature. Nor are such laws unconstitutional because they do not provide for notice to the ward whose land is conveyed. CONSIDERATION, ERECTION, AND MAINTENANCE OF RAILWAY STATION ON LAND IS VALUABLE. The erection and maintenance of a railway sta tion on land of a ward conveyed by his guardian to the company is valuable consideration for such conveyance.

Mayes and Harris, for the appellant.

Morgan and Buchanan, for the appellees.

JOHNSTON, Special Judge. On the fifteenth day of May. 1884, Mrs. Blythe, as the guardian of her two minor children, conveyed by deed the right of way through the lands of her wards to the New Orleans, Baton Rouge, Vicksburg, and Memphis Railroad Company, the consideration expressed in the deed being for the sum of one dollar and the further condition that the grantee, the railroad company, should establish and maintain a depot and section-house and tank on the land.

The minors owned the land in common with Mrs. Blythe, their mother, and three other adult tenants in common, all of whom joined in the conveyance to the railroad company.

The second section of the charter of the New Orleans, Baton Rouge, Vicksburg, and Memphis Railroad Company (Laws 1882, p. 920), after providing that the company could own a right of way acquired by purchase, grant, or devise, and also the mode and manner by which the right of way could be taken by condemnation proceedings, concludes with the following provision: "When any land, to be taken for the purposes aforesaid, shall belong to any infant, non compos, or insane person having a resident general guardian, such guardian may agree with said company upon the amount of damages to be paid for taking such lands, or release to said company his claim or right to damages in the premises." This charter was granted on March 9, 1882.

In 1870 the Memphis and Vicksburg Railroad Company was incorporated. By an act of March 3, 1882, the Memphis and Vicksburg Railroad Company was authorized to consolidate with the Mississippi Valley and Ship Island Railroad Company, and these to consolidate with any other companies, the consolidated company to enjoy all the rights and franchises conceded to the different companies entering into the

consolidation. This act was amended by the act of March 15, 1884, so as to permit the Memphis and Vicksburg Railroad Company to consolidate with any other companies, whether the Mississippi Valley and Ship Island Railroad Company became a party to the consolidation or not.

In August, 1884, under the authority of these statutes, the Memphis and Vicksburg Railroad Company, the New Orleans, Baton Rouge, Vicksburg, and Memphis Railroad Company, the New Orleans and Mississippi Railroad Company, and the Tennessee Southern Railroad Company were consolidated under the name of the Louisville, New Orleans, and Texas Railway Company, this appellant.

The grantee in the deed of May 15, 1884, took possession of the land conveyed as the right of way, fenced the line, constructed its road, and established the depot, section-house, and tank, which have, since the consolidation, been maintained by the appellant. In a word, up to the present time the conditions of the deed have been performed.

Some time after the execution of the deed, Mrs. Blythe died, and the appellee, J. A. Jordan, was appointed guardian. of the two minors, who brought the present ejectment suit against the appellant for the recovery of the two-fifths undivided interests of his wards in the land conveyed by their former guardian.

The plaintiffs, as well as the defendant, in the suit claim through G. L. Blythe, deceased, the father of these minors, as the common source of title, and the question of title involved in the controversy depends alone upon the validity of the deed made for the minors by their former guardian on May 15, 1884.

The circuit court refused to grant a peremptory instruction directing the jury to find a verdict for the defendant, and, upon a verdict in favor of the plaintiff, the court rendered a judgment for the property and $250 damages by way of mesne profits, and thereupon this appeal was taken by the railroad company.

It is contended by counsel for the appellees that the appellant did not acquire the privilege or right conferred by the second section of the act of March 9, 1882, upon the New Orleans, Baton Rouge, Vicksburg, and Memphis Railroad Company, for the reason that the statute authorizing the consolidation of the Memphis and Vicksburg Railroad Company with other companies was passed on March 3, 1882, six days