Rexford v. Widger

A mortgagee of real estate which is subject to the lien of a prior judgment confessed by the mortgagor upon a usurious consideration, is not a borrower within the meaning of the statutes relating to usury,, and therefore cannot maintain a bill to set aside the judgment, without paying, or offering to pay, the sum actually due.

Appeal from the court of chancery, where the case was this : In 1839, Widger and wife recovered against one Randall two judgments in the supreme court, by confession without suit. Rexford and Birdsall were subsequent mortgagees from Randall of certain real estate of Randall, situated in Binghamton, in the county of Broome, on which the judgments were a lien; and they filed their bill in this cause against the judgment creditors, and against the sheriff of Broome county, for the purpose of setting aside the judgments and restraining the sheriffs sale of the lands in question, on the ground of usury. The bill contained no allegation that the complainants, or the judgment debtor, had paid the amount actually due on the judgments, nor any offer to pay the same. The defendants answered, denying the usury, and a replication was filed. Proofs were also taken which tended to establish the usury charged in the bill. The vice chancellor sustained the bill, and made a decree setting aside the judgments. The' defendants appealed to the chancellor, who reversed the decree of the vice chancellor, and directed the bill to be dismissed with costs. The complainants appealed to this court. cited Post v. The President, &c. of the Bank of Utica, (7 Hill, 391.)