Industrial Saving & Loan Co. v. Hare

Citations

• 216 Pa. 389
• 65 A. 1080
• 1907 Pa. LEXIS 826

Syllabus

<p>Interest — Usury—Mortgage—Affidavit of defense.</p> <p>On a scire facias on a mortgage given to secure the unpaid balance of the purchase price of real estate, an affidavit of defense is insufficient to prevent judgment which avers that the amount of the mortgage included both purchase money and interest thereon covering a period of sixteen years, without disclosing what part of the amount was the purchase price of the real estate, and what part of that sum was interest, and without disclosing what was the rate of interest.</p> <p>Mortgage — Contract—Anticipation of payment.</p> <p>Where a contract for the purchase of real estate provides for the giving of a mortgage for the unpaid balance of the purchase money, with the privilege of anticipating the payment with an allowance to the mortgagor of one per cent per annum discount on the amount paid, such provision when incorporated into the mortgage contemplates an allowance for a voluntary anticipation, and not when the balance becomes due and payment is enforced by reason of a default under the terms of the contract and mortgage.</p> <p>Interest — Usury—Who may set up the defense of usury.</p> <p>In. the absence of fraud the defense of usury is personal to the debtor, or his privies in blood or estate, and if they do not choose to make it, no other person can.</p> <p>Where a party gives an obligation in payment of usury agreed to be paid by another, he cannot defend on the ground of usury.</p> <p>Where a person enters into a contract in writing to give a mortgage for an unpaid balance of purchase money, and usurious interest is included in the principal of such mortgage, and thereafter such contract is assigned to another, who executes the mortgage as contemplated by the contract, the assignee cannot set up the defense of usury.</p>