Howard v. Kirkpatrick

263 A.D. 776, 31 N.Y.S.2d 182, 1941 N.Y. App. Div. LEXIS 4895

Opinion

This action is brought for the foreclosure of four certain mortgages given by the defendant DeVeber Kirkpatrick to plaintiff Michael Howard. Subsequent to the making of these mortgages the real property was transferred by Kirkpatrick to defendant Gertrude S. ChappeE by deed which conveyed the said property subject to the said four mortgages. In AprE, 1941, the defendant Gertrude S. ChappeE conveyed the property to one Eüeen E. Fleming by deed which recited that the premises were conveyed subject to the four mortgages heretofore referred to. Thereafter, in May, 1941, EEeen E. Fleming transferred the property back to Gertrude S. ChappeE by deed which recited that'such conveyance was made subject to mortgages held by Howard. No part of the principal was paid on these mortgages after the property was taken over by Gertrude S. ChappeE. In this action for foreclosure of the said mortgages Gertrude S. ChappeE served an answer setting up the defense of usury as to one of the four mortgages. On motion, the court struck out defendant ChappeE’s answer and granted summary judgment. It is from such order that this appeal is taken. The court held that the defense of usury is personal and may be waived by the borrower and that a conveyance subject to usurious mortgage constitutes such waiver. The property having been conveyed subject to these mortgages, the judgment and order must be affirmed. Judgment and order unanimously affirmed, with costs. Present — HiE, P. J., BUss, Heffernan, Schenck and Foster, JJ.