Marsh v. House

Headnote

Usw'y — action by devisee of mortgagor, to set aside a mortgage on the ground of — ■ plaintiff must first offer to pay the amount loaned, to his ancestor.

Appeal from a judgment entered on the report of a referee dismissing the complaint.

This action was brought to set aside a deed of certain premises executed by one Joseph E. Wiley and the plaintiff, his wife, to Benjamin Raymond, now deceased, on the ground that the deed was given to secure the payment of money loaned by Raymond to Wiley at a usurious rate of interest, to wit, twelve per cent.

The jffaintiff, appellant, claims in the complaint a life estate in the use, rents and revenues of the lands, as devisee of the same under Wiley’s will, and also claims to be the executrix named in his will, and alleges that the remainder-men, except one, conveyed to her, all their interest in the real and personal property of Joseph E. Wiley, in his lifetime. The complaint does not allege repayment of the amount received by Wiley of Benjamin Raymond, or contain an offer to repay, nor was any such repayment or offer proved upon the trial. The defendants moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action and the motion was granted, and from the judgment entered thereon this appeal was taken. The court at General Term said:

“ The other action is brought in equity to set aside a conveyance, absolute on its face, not allQged to be in fact a mortgage, on the ground of usury. It was a well-known rule that when a party came into equity to set aside an instrument on the ground of usury, he was required to do equity by offering to pay what he had borrowed, with legal interest. This, of course, did not prevent a party from making a defense at law without any such terms. The rule has been modified by statute in behalf of the borrower (Laws 1831, chap. 430), and the borrower is not now required to pay, or to offer to pay, the money borrowed. But this statute modification extends only to the borrower. ( Wheelook v. Zee, 64 N. Y., 246 .) Other persons must still do equity if they would have equity. Mrs. Marsh was not a

borrower. She never owed the money. She is the devisee of Wiley, who, as she claims, borrowed the money. She cannot, therefore, maintain the action in equity without offering to refund what was received.”