Forbes v. Baaden

31 N.J. Eq. 381 | New York Court of Chancery | 1879

The Chancellor.

This is a suit for foreclosure and sale of mortgaged premises in Jersey City. The mortgage was made by Baaden and wife to 'William H. Child, to secure the payment of $3,775, with’interest. Child assigned it to the complainant. The defence is usury. The answer, which is filed by Baaden and his wife, sets up an agreement by them with the mortgagee, on the making of the loan, for a premium of $150 for the loan, which, they say in the answer, was of the sum of $3,625. According to the answer, the $150 were added to the amount rof the loan, and, with it, secured by the mortgage. The proof fails to support the answer. Baaden, who alone swears to the alleged agreement, explicitly admits, in his testimony, that there was due to Child, when the mortgage was made, the sum of $3,775, the amount for which it was given. Besides, Child swears, that he did not make the alleged agreement.

Baaden testifies that he paid the complainant $400, in two' payments of $200 each, for interest beyond the legal rate. Nothing is said on this subject in the answer. It appears that the money was not paid to the complainant at all, but to William H. Havens, who, at the time, was her agent to collect the interest on the mortgage. It also appears that she never received it, or any part of it. It was paid to Havens, as he swears, as his commission for obtaining further forbearance, and was paid pursuant to an agreement between him and Baaden to that effect. Baaden, on being recalled, admits that it was not paid for interest. The complainant is not chargeable with the money. There will be a decree in accordance with the above conclusions.