Cutter v. Dingee

6 F. Cas. 1078, 8 Ben. 469

Opinion

BLATCHFORD, District Judge.

The case made by the bill and affidavits on the part of the plaintiff, so far as usury is alleged, is fully met by the answer and the opposing affidavits. The usury, as alleged, could, if established, affect only the house and lot which were conveyed and the property which was mortgaged. If the machinery in the factory was covered by the mortgages, the foregoing observations apply to it. If it was not covered by the mortgages, then it is not involved in this suit. The bill prays for no relief as to such machinery, otherwise than as it was part of the mortgaged property.

As to the mortgaged property, the views announced in my decision, made herewith, in the contempt proceedings founded on the foreclosure of the mortgages (In re Irving Isupra]), lead to the conclusion that the plaintiff can have no relief in this suit founded on any alleged invalidity in the foreclosure proceedings, or in the sale of the mortgaged property thereunder, on the idea that the sale was invalid because the decree of foreclosure and the sale were made after the bankruptcy proceedings were commenced, or because the assignee in bankruptcy was not made a party to such proceedings.

The bill, therefore, could not, in any event, be sustained as to the mortgaged property, .for the reason that, as to it, the decree of the state court is a bar to any right of the plaintiff to raise the question of usury in regard to the mortgages, in this suit, even though the evidence for final hearing should sustain the allegations of usury in respect to the house and lot conveyed to the defendant.

The motion for an injunction and a receiver is denied.