Post v. Dart
New York Court of Chancery
This was an appeal, by the complainant, from an order of the vice chancellor of the fifth circuit, for a commission to take the testimony of A. Dart, one of the defendants, as a witness in behalf of his co-defendant, The Bank of Utica and to extend the time to close the proofs for sixty days, to enable the respondent to get the commission executed and returned.
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This was an appeal, by the complainant, from an order of the vice chancellor of the fifth circuit, for a commission to take the testimony of A. Dart, one of the defendants, as a witness in behalf of his co-defendant, The Bank of Utica and to extend the time to close the proofs for sixty days, to enable the respondent to get the commission executed and returned. The bill was filed to foreclose a bond and mortgage given by the defendant Dart; who suffered the bill to be taken as confessed against him. The Bank of Utica, which had a judgment against Dart that was a lien upon the mortgaged…
1Opinion of the Court
The Chancellor.
Two objections are made to the order appealed from : First. That a judgment creditor whose judgment is a lien upon the mortgaged premises subsequent to the giving of the mortgage, cannot set up the defence of usury to a bill to foreclose such mortgage as against him ; and Secondly. That the mortgagor is interested in favor of the bank, so that he cannot be a witness to establish the defence set up in the answer.
A mere stranger cannot insist upon the invalidity of an usurious security ; as in the case mentioned by Justice Periam, in Carter v. Claycole, (1 Leon. 307,) where a…
2Cited by36 opinions
- Ewell v. DaggsSupreme Court of the United States · 1883
- Kay v. . WhittakerNew York Court of Appeals · 1871
- Knickerbocker Life Ins. Co. v. . NelsonNew York Court of Appeals · 1879
- Union Dime Savings Institution v. WilmotNew York Court of Appeals · 1883
- Harper v. Building Ass'nWest Virginia Supreme Court · 1904
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