Beauchamp v. Leagan

14 Ind. 401

• Court: Indiana Supreme Court
• Decided: June 8, 1860
• Status: Published

Opinion

Per Curiam.

Suit to foreclose a mortgage. The mortgage was given to secure five notes. Three of them had been paid. A certain amount of usurious interest had been paid on those notes, voluntarily, at the time of their payment, for the period they had run past due.

2). M’Donald, for the appellant. 2). E. Williamson and A. Daggy, for the appellee.

The two remaining notes, to enforce payment of which the mortgage was foreclosed, were due when the suit was commenced. This is shown by the mortgage and admitted by the answer. On these two notes, an agreement had been made to give time, but no certain time, on the payment of usurious interest. No such interest, however, was paid, and the agreement to pay it was void, and no bar to a suit for foreclosure. Shaw v. Binkard, 10 Ind. R. 227.

The Court deducted, on rendering the judgment on the mortgage for the last two notes, the amount of usurious interest, with 10 per cent, thereon, paid on the former notes. The Court gave the plaintiff costs. This was right, as the notes involved in the suit were not usurious.

The Court ordered the land mortgaged to be sold in parcels, such as it was found to be divisible into. This was right.

The case was fairly tried on its merits.

The judgment is affirmed with 5 per cent, damages and costs.