Devlin v. Shannon

65 How. Pr. 148

Opinion

Larremore J.

— It does not appear that the conveyance of Shannon’s interest was made subject to the mortgages or that the grantee assumed any personal liability. This fact is essential if he is to be estopped from contesting their validity (Hetfield agt. Newton, 3 Sandf. Ch. R., 565; Knickerbocker Life Insurance Co. agt. Nelson, 78 N. Y., 152; Schemerhorn agt. Tallman, 14 N. Y., 93; Hartley agt. Harrison, 24 N. Y., 170).

As the owner of the equity of redemption without notice of the usurious contract, and without personal liability thereupon, he is a privy in estate, and may attack or defend the security given by his grantor (Dix agt. Van Wyck, 2 Hill, 522; Mason agt. Lord, 40 N. Y., 476; Ord on Usury, 131).

Plaintiff's waiver of his claim for a judgment of deficiency against the mortgagor cannot change the result. The transaction must be viewed as originally made, and there is nothing to show that the defendant ever intended to waive the defense of usury. He still holds the relation of the borrower within the statute of 1837, and, consequently, is not affected by the rulings in Wheelock agt. Lee (64 N. Y., 247), Bissell agt. Kellogg (65 N. Y., 437), Buckingham agt. Corning (64 How. Pr., 503).

As there has been no direction of the court to the contrary, the action may be continued against the original party in interest (Code of Civil Procedure, sec. 756 ; U. S. R. S., sec. 5047; Cuff agt. Dorland, 7 Abb. N. C., 194; Platt agt. McMurray, 63 How. Pr., 149).

The legal status of the parties is precisely the same as .it was when the case- was heard on appeal, and being now submitted upon the same evidence, I have only to follow the intimation of the general term, and direct that the question of usury be submitted to a jury for trial.