Legal Opinion

Alden v. Diossy

New York Supreme Court

Decided December 15, 1878Published

Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury. The action was brought to have a chattel mortgage given by plaintiff to defendant canceled, on the ground that it was given to secure an usurious loan. The loan was made to the plaintiff’s husband.

1Opinion of the Court

INGALLS, J.:

The judgment should be affirmed. The complaint shows that the loan was made to the husband of the plaintiff, and she executed the mortgage in question for his benefit. She, therefore, became a surety for her husband, and consequently cannot be regarded as the borrower of the money in such sense as to enable her to maintain this action, without showing that previous to the commencement of the action she had tendered to the defendant the money actually loaned, and in her complaint so alleged. Such tender is indisponible to the maintenance of an action in equity by any party, except…

2Cases cited4 opinions

  1. Campbell v. MorrisonNew York Court of Chancery · 1838
  2. Fanning v. DunhamNew York Court of Chancery · 1821
  3. Bissell v. KelloggNew York Supreme Court · 1871
  4. Rogers v. RathbunNew York Court of Chancery · 1815

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