Prouty v. Eaton
New York Supreme Court
ON or about the 8th day of November, 1838, the defendants, Charles B. Baton and wife, executed to Phineas Prouty, senior, now deceased, a mortgage, bearing date on that day, upon certain premises, being sixty acres of land in the town of Phelps, Ontario county, N. Y., which mortgage was collateral to a bond made by the defendant Charles B. Baton, of the same date, to said Phineas Prouty, senior, which bond and mortgage were conditioned to pay $1700 in five years from the…
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ON or about the 8th day of November, 1838, the defendants, Charles B. Baton and wife, executed to Phineas Prouty, senior, now deceased, a mortgage, bearing date on that day, upon certain premises, being sixty acres of land in the town of Phelps, Ontario county, N. Y., which mortgage was collateral to a bond made by the defendant Charles B. Baton, of the same date, to said Phineas Prouty, senior, which bond and mortgage were conditioned to pay $1700 in five years from the date thereof, with interest semi-annually. On or about the 16th day of November, 1838, Baton and wife executed to the said…
1Opinion of the Court
By the Court, Johnson, J.
It appears upon the face of the bond and mortgage in question that they had not been due twenty years when the action was oommmenced. They bear date November 8, 1838, and are payable five years from date. Th'e debt therefore did not become due until the 8th November, 1843. This action appears to have been commenced in 1860. No presumption of payment therefore arises from lapse of time.
The defense of usury is not a counter-claim, within the meaning of the code. Such a defense asserts simply that the plaintiff’s claim is void in law, and cannot be enforced, by reason of…
2Cases cited2 opinions
- Hawks v. HinchcliffNew York Supreme Court · 1854
- Whiting v. BarneyNew York Supreme Court · 1862
3Cited by13 opinions
- Pope v. . AllenNew York Court of Appeals · 1882
- Walker v. American Central InsuranceNew York Court of Appeals · 1894
- Thorp v. CrotoSupreme Court of Vermont · 1907
- Merritt v. GouleyNew York Supreme Court · 1890
- Cohen v. American Surety Co.Appellate Division of the Supreme Court of the State of New York · 1908
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