La Farge v. Herter

1 Seld. Notes 205

• Court: New York Court of Appeals
• Decided: December 31, 1853
• Status: Published

Opinion

The usurer is not allowed to show that an obligation, which he has taken in satisfaction of a prior demand, is usurious and therefore void, in order to avoid the effect of such obligation as a satisfaction of the prior demand.

One having a judgment against principal and surety, and execution levied upon sufficient property to satisfy it, received from the principal a mortgage npon lands for a sum exceeding the amount due on the judgment, the excess being intended as a premium beyond seven per cent, for forbearance, and the execution was indorsed “Satisfied” by the plaintiff’s attorney. After the mortgage became due, proceedings to foreclose it by advertisement were commenced, and the mortgagor then threatened, unless those proceedings were discontinued, to commence a suit in Chancery to stay the foreclosure, and set aside the mortgage, and had a bill, and affidavits showing the usury, prepared for that purpose — one of which affidavits was made by the surety in the judgment. These papers were exhibited by the attorney of the mortgagor to the mortgagee, who thereupon discontinned the proceedings for foreclosure, and commenced this action upon the judgment.

Held, that he could not recover.

(S. C., 3 Denio, 157; 4 Barb. 346; 11 id. 159; 9 N. Y. 241.)