Hough v. Horsey

Alvey, J., delivered the opinion of the Court. We think the order of .the Court below refusing the injunction should be affirmed, and for the reason assigned by the Judge that the bill of complaint presents no proper ground for relief. The charge in the bill in regard to the omission of the proper revenue stamp on the mortgage, and the defect in the affidavit thereto, are shown to be groundless by the production in Court of the original mortgage itself. The only other ground for the injunction seriously relied on, is the charge of the existence of usury in the mortgage debt.

But as to this latter charge, apart from the very general and imperfect manner in which it is made, and the failure to show that tender and offer to pay the real debt with legal interest had been made to the defendant, the complainant is not in a position to entitle her to be relieved from what is charged to be usury in the contract upon which the mortgage debt is founded. She is in no wise damnified, and to allow her the benefit of the abatement of the mortgage debt now claimed, would be in effect allowing her to defeat in part her own contract with the mortgagor. The complainant purchased the mortgaged estate from the mortgagor, and by the deed of conveyance, which is exhibited with the bill, she was, to pay as part of the consideration mentioned in the deed, and in addition to the sum of $14,850, the mortgage debt of $2,000 due to the defendant; and it is this mortgage debt which is now alleged to be affected with usury, and which the complainant seeks to have reduced. The mortgagor makes no complaint himself, and he is not a party to this bill.

If the mortgage debt were to be reduced on the present application, by reason of the alleged usury in the contract, it is manifest the complainant would get the estate purchased for less than she agreed to pay for it. Whether the mortgage debt was tainted with usury or not, was wholly immaterial in