Wenzel v. Miller — 4 Thomp. & Cook 680

Majority

p. 680

Wenzel v. Miller, appellant.

Headnote

Evidence—declarations of mortgagee—when admissible against subsequent holder of mortgage.

In an action to set aside a mortgage as usurious, held, that it is not altogether clear but that what a mortgagee declares in the presence of the mortgagor, at the time of the execution of the instrument, touching the consideration, may be admissible in evidence even against a subsequent holder, ás part of the res gestee.

Appeal from a judgment in favor of plaintiffs entered upon the report of a referee. The action was brought in Kings county by

p. 681

John Wenzel and wife against Christopher Miller and another, to set aside a bond and a mortgage on the ground of usury.

Hatch & Bemville, for appellants.

Tracy, Gatlin & Brgdhead, for respondents.

The finding of the referee that the mortgage was usurious was upheld upon the ground that there was evidence sufficient to sustain the finding. The head-note states all that is material for publication in the opinion.

Judgment affirmed.