Ahrens v. Kelly

105 A. 237, 89 N.J. Eq. 586, 4 Stock. 586, 1918 N.J. LEXIS 344

• Court: Supreme Court of New Jersey
• Decided: November 18, 1918
• Status: Published

Opinion

Per Curiam.

The vice-chancellor found usury attributable to the complainant’s assignor, both at the making and the renewal of a bond on which the defendant Mary Kelly was an obligor, and a mortgage to secure it made by her son and his wife, who later conveyed to Mary Kelly, subject to the mortgage. On this appeal it is argued that usury was not shown by the proofs, especially so' far as the original mortgagee was concerned. Without going into the details of the evidence, which were fully discussed in the opinion of the court below, we think it sufficient to say that on a careful reading of the proofs we agree with the vice-chancellor that usury was fully proved, even under the exacting rule of burden of proof applicable to that class of cases, and that he properly held complainant chargeable therewith.

It is further urged that the respondent Mary Kelly.cannot set up’ usury because the property was conveyed to her expressly subject to the usurious mortgage; and in support of this the line of decisions typified by Lee v. Stiger, 30 N. J. Eq. 610, is relied on. Those cases are not applicable here; for 'defendant Mary Kelly was a party to the bond as obligor, and as such ultimately liable for any deficiency arising on a sale of the mortgaged premises; and as such is clearly entitled to question the amount due by setting up this defence. Scull v. Idler, 79 N. J. Eq. 466. Patrick Kane, the original mortgagor and co-obligor, is also a party defendant and joins in the defence, as he is entitled to do. It could scarcely be said that a decree for one amount could be entered as to him, and for another amount against Mary Kelly.

The decree will be affirmed.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13.

For reversal — Nolle.