25 N.J. Eq. 188 | New York Court of Chancery | 1874
This suit is brought to foreclose a mortgage given on the-10th day of October, 1860, upon land in Mercer county, by Benjamin Marlatt to Samuel F. Butcher, to secure the payment of $800, with interest, and assigned by the latter to the complainant, on the 5th of April, 1862. The defence is-usury. The property was sold by the sheriff to the defendant, John Dawes, in July, 1872, under a foreclosure of a subsequent mortgage, the holder of this mortgage not being a party to that suit. At that sale the announcement was made-that the property was sold subject to the mortgage now in suit, and Dawes was informed by the complainant, before the sale was made, that there was due upon the mortgage, $800' of principal, besides interest. The usury set up in the answer,.
That on the occasion of this loan, a watch was delivered by Marlatt to Butcher, is admitted, but Butcher swears, that he did not receive it as a premium for the loan. His account of the transaction is, that before the negotiation for the loan,
But it is urged by the complainant’s counsel, that the defence of usury cannot avail Dawes, because he purchased the mortgaged premises at the sheriff’s sale, subject to this mortgage. This position is untenable. Brolasky v. Miller, 1 Stockt. 807.
The solicitor had no authority to agree with Warwick for .his client, that the latter would waive the defence of usury, -and besides, if he had had such authority, the bond and mortgage would not have been, by this agreement, and the payment or allowance in pursuance thereof, purged of the usury, so long as they remained in the hands of Warwick. This mortgage therefore, being still held by Warwick, is still tainted with usury, and there can therefore be no recovery upon it. The position taken by complainant’s counsel, that the court might, if it found that there was usury in the loan for which the mortgage w'as given, give the complainant the benefit of the supplement of April 12th, 1864, to the act