Ayrault v. Elmer

New York Court of Appeals

Ayrault v. Elmer

1 Seld. Notes 118

DecidedJuly 13, 1853

StatusPublished

This text of 1 Seld. Notes 118 (Ayrault v. Elmer) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ayrault v. Elmer, 1 Seld. Notes 118 (N.Y. 1853).

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Opinion

Where a person indebted on account, to two partners, executes a mortgage to one of them, to be transferred to the other partner at a usurious rate of interest, to raise money to pay the debt, and it is -so transferred, and the [119]*119proceeds, to an amount exceeding the amount of the debt, received by the firm" and credited to the debtor in his account, the debt due the firm is thereby cancelled. No recovery can be had on the account, although the mortgagor successfully defended a suit in equity to foreclose the mortgage by setting up and maintaining the defence of usury.

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Where a person indebted on account, to two partners, executes a mortgage to one of them, to be transferred to the other partner at a usurious rate of interest, to raise money to pay the debt, and it is -so transferred, and the [119]*119proceeds, to an amount exceeding the amount of the debt, received by the firm" and credited to the debtor in his account, the debt due the firm is thereby cancelled. No recovery can be had on the account, although the mortgagor successfully defended a suit in equity to foreclose the mortgage by setting up and maintaining the defence of usury.

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Bluebook (online)

1 Seld. Notes 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ayrault-v-elmer-ny-1853.