Mutual Life Insurance v. Bowen
New York Supreme Court
THIS was a proceeding for the distribution of surplus moneys arising from the sale of mortgaged, premises under a decree of foreclosure. John J. Phelps held a mortgage upon the premises, second to that of the plaintiffs in . this suit. Both those mortgages were paid out of the proceeds of the sale ; and there remained a surplus of §5487.18 to the credit of this action.
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THIS was a proceeding for the distribution of surplus moneys arising from the sale of mortgaged, premises under a decree of foreclosure. John J. Phelps held a mortgage upon the premises, second to that of the plaintiffs in . this suit. Both those mortgages were paid out of the proceeds of the sale ; and there remained a surplus of §5487.18 to the credit of this action. The Broadway Bank held a third mortgage upon the property sold under the decree of foreclosure in this action ¡ and Hutton, Sturgis, Iselin and Smythe held a fourth mortgage. Upon the application of the Broadway Bank an order…
1Opinion of the CourtSutherland, J.
The usury was established. It was a bald case-of usury. The cases appear to show, conclusively, that the holders of the 4th mortgage could set up the usury. (Post v. Dart, 8 Paige, 640. Morris v. Floyd, 5 Barb. 130. Dix v. Van Wyck, 2 Hill, 522, and other cases cited by Mr. Smith.)
If the Broadway Bank mortgage was affected or tainted with usury, it was and is void as to the holders of the 4th mortgage, and as to them was not a lien either at law or in equity, on the surplus moneys.
The court had not only the power, but it was its duty in this action to provide for the equitable distribution or…
2Cases cited5 opinions
- Morris v. FloydNew York Supreme Court · 1849
- Livingston v. . MildrumNew York Court of Appeals · 1859
- Beekman v. GibbsNew York Court of Chancery · 1840
- King v. WestNew York Supreme Court · 1854
- Field v. HawxhurstNew York Supreme Court · 1853
3Cited by16 opinions
- Davison v. MacDonaldNew York Supreme Court · 1925
- Snyder v. Middle States Loan, Building & Construction Co.West Virginia Supreme Court · 1902
- Lee v. FeamsterWest Virginia Supreme Court · 1882
- Rochester Savings Bank v. WhitmoreAppellate Division of the Supreme Court of the State of New York · 1898
- NYCTL 1997-1 Trust v. StellAppellate Division of the Supreme Court of the State of New York · 2020
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