Henderson v. Bellew

Citations

• 45 Ill. 322

Syllabus

<p>1. Usury—upon what terms enforced in equity. Where a complainant comes into a court of equity and asks its interposition against usury, he will only be entitled to it upon equitable terms ; which would be the payment of the principal and legal interest.</p> <p>3. Although a defendant in a court of equity may insist upon the penalties of the statute of usury/yet the court will not enforce those penalties at the prayer of a complainant, but will require him to do equity as a condition of relief.</p> <p>3. Same—when purchaser of mortgaged premises may setup usury. If, in a sale of land, subject to a mortgage, tainted with usury, the purchaser is informed of the fact of usury by the vendor, and authorized by him to set it up as against the mortgage, the abatement to which the mortgage would be subject on account of usury, thus constituting an element in the price of the land, the purchaser under such circumstances would be at liberty to raise the question.</p> <p>4 But, if the mortgage on its face draws only legal interest, and the purchaser buys from the mortgagor subject to the mortgage as it stands, no reference being had in the price to any hidden taint of usury, the presumption is that the vendor desires the mortgage paid according to its terms; and it is not for the purchaser, who has bought the land expressly subject to the mortgage, and who has probably been allowed for it in the purchase money, to undertake to evade its full payment by setting up usury.</p> <p>5. Where a vendor sells land expressly subject to a mortgage, he affirms it.</p>