to take deed for said place, about August 28, 1884, plaintiff induced her to assign her bid to him. on his agreement to take deed and to convey the same to her right away.
Fourth. That thereafter, about September 22, 1884, plaintiff conveyed same premises to defendant, Sarah F. Beecher, and took from her the mortgage set forth in the complaint herein, to secure the sum of $1,800.
Fifth. That the plaintiff paid for defendant on account of said loan for the real estate $1,550, and to her only the sum of one hundred and sixty or sixty-two dollars, and for her for drawing papers, etc., five dollars.
Sixth. That the consideration named in deed to said Terwilhger was $1,550, and in deed to defendant $1,625.
Seventh. That such taking of title by plaintiff and deeding by him to defendant, Sarah F. Beecher, was a cover and device by plaintiff in an attempt to evade the usury laws and the transaction as completed was really a loan of $1,800 as planned on August 9th, 1884, whereby plaintiff agreed to loan $1,800 to the defendant and was to receive seventy-five dollars for such loan in addition to six per cent, interest per annum.
The court refused to find that the defendants are entitled to judgment dismissing complaint; but decided that respondent is entitled to be subrogated to the purchase money paid on the sale of the property and required the appellants to pay that amount, $1,550, with interest, in all $1,898.26, within thirty days or in default thereof the respondent to have judgment of foreclosure and sale, the collateral mortgage to be delivered up. The respondents not paying the amount, judgment of foreclosure and sale was entered, with costs. From that judgment this appeal is taken.
Wm. D. Dickey, for app’lts; A. S. & W. F. Gassedy, for resp’t.
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 ; 8 N. Y. State Rep., 14.
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 could 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