Terwilliger v. Beecher

11 N.Y.S. 834, 34 N.Y. St. Rep. 380, 58 Hun 605, 1890 N.Y. Misc. LEXIS 2390

• Court: New York Supreme Court
• Decided: November 26, 1890
• Status: Published

Opinion

Landon, J.

If the plaintiff can trace his title to the lien for the purchase money without resorting to the usurious contract, then the lien is valid; otherwise, not. Perkins v. Hall, 105 N. Y. 539, 12 N. E. Rep. 48. In that case prior valid liens were paid by the mortgagee, in pursuance of the terms of the usurious mortgage, and it was held that the liens so paid would be, if revived, the fruits of the usurious contract, and therefore could not be revived. In Baldwin v. Moffett, 94 N. Y. 82, the prior lien was paid as part performance of the usurious contract, and hence all right to it sprang from usury, and it could not be revived. In Patterson v. Birdsall, 64 N. Y. 294, the plaintiff, a junior incumbrancer, paid the prior incumbrance, and took a new mortgage for both, with usury added. The new mortgage being adjudged void, it was held that, since the plaintiff, as junior incumbrancer, wuld redeem the prior incumbrance, he could thus trace" title to it without recourse to the usurious contract, and he was allowed' to enforce it. These cases illustrate the rule. We think, under the findings of fact made by the trial court, the plaintiff cannot trace title to any equitable lien apart from the usurious contract. Every step taken, and every act performed, was in pursuance of the usurious contract; and, as the so-called “equitable lien” had its origin in and sprang from it, it cannot be free from the taint of the corrupt agreement which produced it. Judgment reversed. Hew trial granted; costs to abide the event. All concur.