Haggerson v. Phillips
Wisconsin Supreme Court
APPEAL from tbe Circuit Court for Oconto County. The complaint alleges that the plaintiff’s husband, now deceased, executed and delivered to the defendant a promissory note on the 6th of May, 1871, for $500, and secured the same by a mortgage on real estate ; that the note and mortgage were given in fact for a loan of $400 only, the defendant retaining $100 as usurious interest; that $60 had since been paid on the note; that the maker of said note has since died intestate;…
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APPEAL from tbe Circuit Court for Oconto County. The complaint alleges that the plaintiff’s husband, now deceased, executed and delivered to the defendant a promissory note on the 6th of May, 1871, for $500, and secured the same by a mortgage on real estate ; that the note and mortgage were given in fact for a loan of $400 only, the defendant retaining $100 as usurious interest; that $60 had since been paid on the note; that the maker of said note has since died intestate; that no administrator of his estate has been appointed ; that the defendant has. advertised to sell the mortgaged lands…
1Opinion of the CourtRyaN, C. J.
I. The objection to the complaint urged in support of the demurrer is, that the respondent does not tender payment of the principal and interest which she admits to be equitably due on the' mortgage; and Rietz v. Fœste, 30 Wis., *366693, is cited for the objection. There the suit was prosecuted to cancel the mortgage, as void for usury; and, in deciding it, as in other cases of the kind, the court held that the party seeking the aid of a court of equity to cancel the instrument void for usury, must first tender payment of the sum actually due. In the absence of a different statutory…
2Cases cited3 opinions
- Encking v. SimmonsWisconsin Supreme Court · 1871
- Draper v. EmersonWisconsin Supreme Court · 1867
- Rietz v. FoesteWisconsin Supreme Court · 1872