Rexford et al. vs. Widger et al.

Rexford et al. vs. Widger et al. 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. Rexford u. Widger, 3 Barb. Ch. 640, affirmed. 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 sheriff’s 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. R. W. Pechham, for appellants. . jV". H'ill, Pun., for respondents, cited Post v. The President, fc., of the Bank of Utica (-7 Hill 391). [MAJORITY — The Court,] The Court, upon the authority of the case cited, were of opinion that the bill could not. be sustained, and thereupon the decree of the chancellor was affirmed.