Bensley v. Homier
Wisconsin Supreme Court
APPEAL from the Circuit Court for Wood County. Foreclosure of a mortgage, executed in 1870. The administrator of the mortgagor’s estate, his widow and heirs-at-law, the surviving partner of a firm of which he had been a member, and certain judgment creditors of the estate, including Homier, were made defendants. None of them answered, except Homier.
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APPEAL from the Circuit Court for Wood County. Foreclosure of a mortgage, executed in 1870. The administrator of the mortgagor’s estate, his widow and heirs-at-law, the surviving partner of a firm of which he had been a member, and certain judgment creditors of the estate, including Homier, were made defendants. None of them answered, except Homier. His answer averred that the mortgage was void for usury; that the estate of the mortgagor was insolvent, as was also said surviving partner; and that there was no property of. said estate or said- partner (other than that covered by the mortgage)…
1Opinion of the Court
Evan, 0. J.
This appeal presents the question, whether a junior judgment creditor of the mortgagor can, in a suit to foreclose the mortgage which the mortgagor does not defend, mate the defense for himself that the mortgage is usurious and void under ch. 160 of 1859. In other words, whether the right to avoid a security for usury under that statute is personal to the borrower, or whether a creditor can avail himself of it, when the borrower does not.
The question here is one strictly of avoidance. The right of a creditor of the borrower to reduce the security to the amount for which it ought to…
2Cases cited3 opinions
- Post v. DartNew York Court of Chancery · 1841
- Inhabitants of Reading v. Inhabitants of WestonSupreme Court of Connecticut · 1829
- Draper v. EmersonWisconsin Supreme Court · 1867
3Cited by12 opinions
- Fenby v. HuntWashington Supreme Court · 1909
- American Rubber Co. v. WilsonMissouri Court of Appeals · 1894
- Lee v. FeamsterWest Virginia Supreme Court · 1882
- Hamilton v. ProutyWisconsin Supreme Court · 1880
- Bennett v. KeehnWisconsin Supreme Court · 1883
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