Jackson ex dem. Skinner v. Packard

6 Wend. 415 | N.Y. Sup. Ct. | 1831

By the Court,

Sutherland, J.

The questions which arise upon this case are, 1st. Was Baker a competent witness'? 2d. Did he establish the usury 1 3d. Was there any material misdirection on the part of the judge % The interest of Baker was clearly balanced. The verdict could never be given in evidence for or against him ; if the title of the plaintiff failed, he would be liable on the covenant contained in his deed to Percival, which was given at the same time with the mortgage from Percival to him, of which the lessors of the plaintiff were the assignees. If the defendant should be evicted, Baker would be responsible on the covenants of warranty contained in the mortgage given by him to Mulford, under which the defendant .held ; so that in either event, he might be responsible to one'or the other of the parties. He could not avail himself, in an action brought against him by the defendant. of the fact that in this case the mortgage had been shown to be usurious. Baker’s testimony, if true, establishes the fact of usury beyond all question. If a mortgage, or any other security is given for two or more antecedent loans, either of which was infected with usury, the whole security is void. The statute declares that all bonds, &c. whereupon or whereby there shall be reserved, or taken, or secured, or agreed to be reserved, or taken, above the sum of seven per cent, shall be utterly void. There is no such thing as such an instrument being void in part, and good for the residue. The taint of usury destroys the whole security. So far as any part of the consideration was founded upon a pre-existing valid security, it can be recovered on the ground of the original consideration. If A. is justly indebted to B. in $1000, for which he gives him a bond and mortgage, covering usurious interest, the bond and mortgage are void; but the debt may nevertheless be recovered; that is not annihilated, or affected by the subsequent usurious agreement.

The observation of the judge, that the discrepancy between the testimony of Baker and his former statement seemed naturally enough accounted for, can hardly be considered a misdirection. It was nothing more than the expression of the opinion of the judge upon that point; but it in no respect assumed to take from the jury the right to judge for themselves upon the matter.

Motion for new trial denied,