Brooks v. . Avery
New York Court of Appeals
Bill filed to foreclose a mortgage, dated September 25, 1840, executed by Daniel Samain to Henry B. Williams, for the sum of $12,000, payable by installments, with semi-annual interest, and covering a farm in the county of Monroe. The mortgage was assigned by Williams, on the 22d of February, 1841, to Fletcher M. Haight, from whom, through sundry mesne assignments, the plaintiffs became the holders before the commencement of the suit.
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Bill filed to foreclose a mortgage, dated September 25, 1840, executed by Daniel Samain to Henry B. Williams, for the sum of $12,000, payable by installments, with semi-annual interest, and covering a farm in the county of Monroe. The mortgage was assigned by Williams, on the 22d of February, 1841, to Fletcher M. Haight, from whom, through sundry mesne assignments, the plaintiffs became the holders before the commencement of the suit. Samain, on the 1st of December, 1843, conveyed the premises.by quit-claim deed, to the defendant, Elias Avery, who defended on the ground of usury. The case was…
1Opinion of the CourtJewett, J.
This defence goes upon the assumption, that Williams, although legally the owner of the mortgaged premises in fee, held them in fact, only as a means of reimbursing himself the amount which he had previously advanced as a temporary loan for the benefit of Avery, and that Samain purchased the premises of Williams for the amount of such loan, (being about $10,000,) and made the bond and mortgage in question, conditioned for the payment of $12,000, with interest, for the purpose of being sold in market by Williams as his agent, at the best price he could obtain, not less than $10,000, for the…
2Cases cited2 opinions
- Cram v. HendricksCourt for the Trial of Impeachments and Correction of Errors · 1831
- Post v. DartNew York Court of Chancery · 1841
3Cited by17 opinions
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- Archer Motor Co. v. RelinAppellate Division of the Supreme Court of the State of New York · 1938
- DeSimon v. Ogden AssociatesAppellate Division of the Supreme Court of the State of New York · 1982
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