Essley v. Sloan

Citations

• 116 Ill. 391
• 6 N.E. 449

Syllabus

<p>1. Usury—who may take advantage of it—in case of a conveyance by « mortgagor—rights of the grantor and of the grantee, in respect to the usury in the debt secured by the mortgage. Where a party conveys land subject to a trust deed thereon, given by him to secure a note tainted with usury, this will be treated as an election on his part to affirm the validity of his contract; and the grantee of his equity of redemption, taking with full knowledge of the incumbrance, and reserving out of the purchase price the amount due on the mortgage, can not be heard to complain of the usury in the original debt secured by the trust deed, nor can he set up in defence any usurious payments which may have been made by the grantor.</p> <p>2. In such case, the conveyance being made expressly subject to the incumbrance, the grantor will, by such conveyance, divest himself of the right to redeem from the incumbrance, and will have no interest in the land or the lien; and so far as payment of his debt is sought out of the land, he can not set up the usury or payments of usury made by him, and thereby aid his grantee in avoiding payment of the incumbrance.</p> <p>3. Intebest—contract rate on bill to redeem from mortgage. Where a party seeks in equity to redeem land from a mortgage not tainted with usury, or where he is not entitled to avail of usury, it is proper, in decreeing the relief sought, to require him to pay the principal debt, together with the rate of interest stipulated by the parties in the contract, not exceeding that allowed to be contracted for by law. Gases affected by usury, in which this court holds that the party seeking relief shall pay only six per cent, have no application.</p> <p>4. Purchases—subject to incumbrance—presumption as to incumbrance being part of the consideration. Where a party takes a deed for land which expressly states it is made subject to an incumbrance therein described, the law will presume that the incumbrance as it appears on its face forme