Reference

Cited By

4 cases

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Published

Syllabus

Interest— Usury—Mortgage. The satisfaction of a mortgage and taking of a new mortgage in its place does not extinguish the mortgagor’s right to have an amount paid on the prior mortgage as usury applied in discharge, pro tanto, of the principal debt. Estoppel— Usury—Defences. The mere omission by a mortgagor, at the request of the mortgagee and for his purposes, to set up the defence of usury, in a proceeding to determine whether the mortgage was a first or second lien, will not estop the mortgagor from subsequently setting up the defence of usury. Mortgage—Scire facias—Usury—Terre tenant. Tiie only person who can defend a scire facias sur mortgage, because of usury included in the mortgage, is the mortgagor. A terre tenant, whether he became such by private or judicial sale, cannot as a general rule make the defence. Opening judgment—Mortgage—Subrogation. A mortgagor, against whose land a judgment has been entered upon a scire facias, cannot, after the land has been sold at a judicial sale, have the judgment opened on the ground of usury, if the mortgagee offers to file a paper renouncing and relinquishing all right to sue and to recover a judgment upon the bond accompanying the mortgage. Before the entry of judgment the defendant had a legal right to set up the usury as a defence to the sci. fa., because of his liability on the bond; even after the rendition of judgment under the circumstances stated he has a right to have it opened, if it is necessary to protect him in any legal or equitable right; but as he would be entitled to the equitable right of subrogation to the extent only of making him whole, and as a discharge from liability on the bond will wholly release and discharge him from liability for the debt as well as the usury, he has no interest to be affected by the judgment, and therefore is not entitled to have it opened. Per Rice, P. J.