Terwilliger v. Beecher
New York Supreme Court
Appeal from special term, Ulster county. Action by Daniel Terwilliger against Sarah F. Beecher and Joseph Beecher to foreclose a mortgage. Appeal horn a judgment entered in Ulster county upon the decision of the court upon a trial by the court without a jury.
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Appeal from special term, Ulster county. Action by Daniel Terwilliger against Sarah F. Beecher and Joseph Beecher to foreclose a mortgage. Appeal horn a judgment entered in Ulster county upon the decision of the court upon a trial by the court without a jury. The court held the mortgage to be void for usury, but held that the plaintiff was entitled to be-subrogated to the equitable lien for the purchase money, and that the defendant might redeem in 30 days, failing which, judgment to be entered to foreclose the lien. The defendants failed to redeem, and judgment for the sale of the premises,…
1Opinion of the CourtLandon, J.
If the plaintiff can trace his title to the lien for the purchase money without resorting to the usurious contract, then the lien is valid; otherwise, not. Perkins v. Hall, 105 N. Y. 539, 12 N. E. Rep. 48. In that case prior valid liens were paid by the mortgagee, in pursuance of the terms of the usurious mortgage, and it was held that the liens so paid would be, if revived, the fruits of the usurious contract, and therefore could not be revived. In Baldwin v. Moffett, 94 N. Y. 82, the prior lien was paid as part performance of the usurious contract, and hence all right to it sprang from…
2Cases cited3 opinions
- Patterson v. . BirdsallNew York Court of Appeals · 1876
- Baldwin v. . MoffettNew York Court of Appeals · 1883
- Perkins v. . HallNew York Court of Appeals · 1887