Devlin v. Shannon
New York Supreme Court
The plaintiff, as assignee of two certain bonds and mortgages executed by the defendant, brought suits to foreclose the same, to which among other defenses defendant interposed the plea of usury. The plaintiff had judgment in his favor, and upon appeal therefrom, the general term of this court decided as follows: “ Pee Cubiam. — From an examination of the evidence in this case, we think substantial justice between the parties requires a retrial of the action.
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The plaintiff, as assignee of two certain bonds and mortgages executed by the defendant, brought suits to foreclose the same, to which among other defenses defendant interposed the plea of usury. The plaintiff had judgment in his favor, and upon appeal therefrom, the general term of this court decided as follows: “ Pee Cubiam. — From an examination of the evidence in this case, we think substantial justice between the parties requires a retrial of the action. We deem it a proper case for the court to frame and present to a jury an interrogatory whether the transaction was usurious. The…
1Opinion of the Court
Larremore J.
— It does not appear that the conveyance of Shannon’s interest was made subject to the mortgages or that the grantee assumed any personal liability. This fact is essential if he is to be estopped from contesting their validity (Hetfield agt. Newton, 3 Sandf. Ch. R., 565; Knickerbocker Life Insurance Co. agt. Nelson, 78 N. Y., 152; Schemerhorn *150agt. Tallman, 14 N. Y., 93; Hartley agt. Harrison, 24 N. Y., 170).
As the owner of the equity of redemption without notice of the usurious contract, and without personal liability thereupon, he is a privy in estate, and may attack or defend…
2Cases cited8 opinions
- Schermerhorn v. . TalmanNew York Court of Appeals · 1856
- Hartley v. . HarrisonNew York Court of Appeals · 1861
- Knickerbocker Life Ins. Co. v. . NelsonNew York Court of Appeals · 1879
- Wheelock v. . LeeNew York Court of Appeals · 1876
- Mason v. . LordNew York Court of Appeals · 1869
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