69 Mo. App. 530 | Mo. Ct. App. | 1897
On the twenty-fourth of August, 1893, plaintiffs sued defendant on an- account for $601.84, attaching in said account a mining plant, known as the Davie Mining and Development Company’s plant. The Aurora State Bank, by its assignee, interpleaded for the attached property, claiming it under a mortgage executed by the defendant. Plaintiff’s answer to the interplea set up the fraudulent character of the mortgage, and that it .was given to secure a usurious debt. Upon these issues there was a verdict for the inter-pleader, which plaintiffs seek to reverse by this appeal.
On the trial the interpleader introduced in evidence a contract obligating E. M. Cole and N. L. Wickwire to pay it $1,350, thirty days after date of March 26, 1893, which contract recited the deposit as collateral security of two notes, dated Eebruary 23, 1893, and March 31, 1893, for $1,000, and $350, respectively,
Plaintiff offered to prove that usurious interest was charged upon the notes so guarantied. Defendant’s guaranty did not deprive him of the right to make the defense of usury to said notes had suit been brought thereon. Neither did his subsequent contract to pay the amount of both of them deprive him of the right, to such defense. There is not a particle of evidence in this record that defendant has in any way waived his right to defend a suit upon his own note secured by the' mortgage in interpleader’s favor, for usury. Unless the defendant is precluded from making the defense of usury, the plaintiff, as his attaching creditor, is entitled to make such defense in a proceeding brought for the enforcement of the mortgage in question under the second section of the act of 1891. Laws of 1891, p. 171; American Rubber Co. v. Wilson, 55 Mo. App. 656; Voorhis v. Staed, 63 Mo. App. 370; Johnson v. Simmons, 61 Mo. App. 395. The broad language of the statute renders the lien of a mortgagee or pledgee of personal property invalid and illegal, if it is shown on the trial, had for the enforcement of such lien, that the party “holding or claiming” it has received or exacted usuri