Ready v. Huebner
Wisconsin Supreme Court
APPEAL from the Circuit Court for Manitowoc County. Foreclosure of a mortgage executed by Christian Koebke and wife. The mortgagors did not defend. The defendants Julianna Huebner and her husband, F. W. Huebner, second mortgagees, answered, setting up the defense of usury in the note secured by the mortgage here in suit.
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APPEAL from the Circuit Court for Manitowoc County. Foreclosure of a mortgage executed by Christian Koebke and wife. The mortgagors did not defend. The defendants Julianna Huebner and her husband, F. W. Huebner, second mortgagees, answered, setting up the defense of usury in the note secured by the mortgage here in suit. At the trial, the court ruled out all evidence offered by the defendants Huebner to support the defense of usury, and, upon a finding of facts in accordance with the complaint, rendered judgment in favor of the plaintiff. The defendants Huebner appealed.
1Opinion of the CourtCole, J.
The only question presented on this appeal is, whether, in a suit to foreclose a prior mortgage, a second mortgagee can set up the defense of usury to avoid such mortgage. The mortgagor makes no defense. And the question *693is, whether the defense of usury is so exclusively personal that it cannot be made by the second mortgagee. Ve are not aware that this precise question has been before presented to this court for decision, though, in Bensley v. Homier, 42 Wis., 631, a strictly analogous one was passed upon. That was an action to foreclose a mortgage, which the mortgagor did not defend. A…
2Cases cited4 opinions
- Hartley v. . HarrisonNew York Court of Appeals · 1861
- Newman v. KershawWisconsin Supreme Court · 1860
- Bensley v. HomierWisconsin Supreme Court · 1877
- Chamberlain v. . DempseyNew York Court of Appeals · 1867
3Cited by6 opinions
- Hill v. Alliance Building Co.South Dakota Supreme Court · 1894
- Lee v. FeamsterWest Virginia Supreme Court · 1882
- Hamilton v. ProutyWisconsin Supreme Court · 1880
- Barney v. Tontine Surety Co.Michigan Supreme Court · 1902
- Irwin v. Washington Loan Ass'nOregon Supreme Court · 1903
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