25 N.Y.S. 885 | N.Y. Sup. Ct. | 1893
This action was commenced by John H. Hillier to compel the surrender and cancellation of a bond and mortgage for $4,500, which were executed by him on December 1, 1874, to the defendant Ellen Golden, and to restrain a suit which had been commenced by Ellen Golden against George H. Wooster to foreclose the mortgage. The mortgage covers property on Staten island, which in February, 1877, was conveyed by Hillier, the mortgagor, to George H. Wooster, by a deed containing the usual full
The decisive question presented upon this appeal is whether the money represented by the Golden mortgage was the money of Mrs. Golden or of one William Hastings. If the latter, we think that, upon the facts here appearing, showing that on prior loans made interest was deducted at the rate of l-¡- per cent, a month, and, in addition thereto, a bonus of $300, a case of usury was established. The learned referee did not determine this question of whether or not the transaction was usurious, having found as a fact that the moneys represented by the Golden mortgage were moneys actually advanced by Mrs. Golden, as to whom no proof was offered that would, as against her, taint the transaction with usury. If the conclusion, therefore, of the referee is sustained by the evidence, that the consideration realized by the plaintiff’s decedent, Hillier, “from the defendant Ellen Golden for the making of said bond and mortgage was the sum of $4,500 paid by the defendant Golden to the plaintiff at the time of the making and delivery by the plaintiff to defendant Golden of said bond and mortgage aforesaid,” then that is the end of plaintiff’s case. If otherwise, the judgment should be reversed, and a new trial ordered.
By the testimony it is shown that prior to 1877 Hastings acquired a mortgage for $1,750 on Hillier’s Staten Island property, which mortgage had been formerly held by one Meyers, who had commenced a suit to foreclose it, and at Hillier’s request Hastings pur
It is strenuously urged, however, by respondents that, whether Mrs. Golden was the real or nominal owner of the bond and mortgage, this action cannot be maintained, for the reason that Hillier conveyed the property to Wooster subject to the mortgage, and that thus the rights of the parties were fixed, and that the subsequent suit between Wooster and Hillier, by which the clause making the property subject to the mortgage was stricken out without notice to Mrs. Golden, in no way affected or impaired the rights of whomsoever owned the mortgage. The answer to this proposition, we think, is to be found in the case of Insurance Co. v. Nelson, 78 N. Y. 137, wherein it was held that such a subject clause may be eliminated from a conveyance without the consent of the mortgagee.
Another argument suggested for upholding the judgment is that the transaction was not usurious, either upon the plaintiff’s own showing or upon the facts as proved by the defendants; it being insisted that what occurred with respect to the payments by Hillier to Hastings when they came to close the loan would not constitute usury, that the most that such evidence showed was that Hillier paid usurious interest on this settlement upon confessedly invalid advances before then made, and that the agreement to be bound for any interest, when computed upon an overdue claim, does not constitute usury. The answer to this, however, it seems to us, is afforded by the transaction itself, which was a single one. The procuring of the loan and the payment!of the usury was part and parcel of a single transaction. Hillier did not pay off his obligations, and afterwards go to Hastings, and obtain the loan in question. He borrowed $4,500, out of which Hastings had the right to retain the amount legally due on the $1,750 mortgage and on the note, and no more. As a matter of fact, however, he retained much more than this, and this additional sum thus retained constituted the usury. But it is not necessary for us to determine that question, for the reason that the referee found that whether there was or was not usury was immaterial, which was an entirely proper conclusion to be reached in view of his other conclusion that the money was Mrs. Golden’s, and had been advanced by her.
The other questions presented upon this appeal need not be considered in view of our opinion of the force and effect of the evidence upon the main question as to whether Mrs. Golden was the nominal or actual person in the transaction. We think that the plaintiff had made out a prima facie case, which placed upon the