Leventhal v. Martucci

The third defense alleges that the note sued upon is usurious. It is alleged in the complaint that the note sued upon was secured by a mortgage of real estate and that the loan was in excess of $500.00.

Section 4737, General Statutes, Revision of 1930 excepts from the loans which are prohibited because usurious “any bona fide mortgage of real property for a sum in excess of five hundred dollars”. This clearly applies to the indebtedness itself which is secured by a mortgage. It would be entirely negatory to provide that a mortgage should be valid and at the same time provide that the note secured thereby was void. The mortgage is nothing without the debt secured thereby. If the debt is void it follows that the mortgage is void. It would be impossible for there to be a void debt secured by a valid mortgage.

*23It therefore follows that the indebtedness here sued upon is not affected by the usury statutes.

The demurrer is sustained.