
    BANKS a. VAN ANTWERP.
    
      Supreme Court First District;
    
    
      Special Term, Nov. 1857.
    Mortgage Foreclosure.—Defence of Usury.
    A party setting up the defence of usury must aver clearly every particular necessary to establish the usury charged, and must distinctly negative every supposable fact, which, if true, would render the transaction innocent or lawful.
    An answer in an action for foreclosure of a mortgage, which alleges that the mortgage, although dated on a specified, was not executed until a specified day thereafter,—that it was made to secure a loan which was not made until after the day of execution,—that it was thus antedated for the purpose of reserving excessive interest, and that the defendant did thereby reserve excessive interest ;—but which does not aver that such excess of interest was ever exacted or paid, and does not deny that the loan was engaged and the money set apart by the lender for the borrower from the day of the date of the mortgage,—is insufficient as a plea of usury.
    Motion for judgment in a foreclosure suit.
    This was an action by David Banks against Peter Yan Antwerp and others, for the foreclosure of a mortgage. The defendants pleaded usury. The substance of the statements of the answer relative to the defence, is given in the opinion.
   Roosevelt, J.

—Usury as a defence, standing upon the same footing in principle as an action for the recovery of a penalty or forfeiture, the party setting it up must aver clearly every particular necessary to such a recovery, and must distinctly negative every supposable fact which, if true, would render the transaction innocent or lawful.

In the present case the defendants allege that the mortgage sought to be foreclosed, although dated on the first of the month, was not in fact executed until August 24, 1846; that it was made to secure the juincipal sum of $3000 loaned to the defendant Yan Antwerp, on August 26, 1846 ; that it was so dated on the first of the month for the purpose of reserving a greater rate of interest than seven per cent., and that the plaintiff did “ thereby” reserve to himself for the loan “ fourteen dollars” above the lawful rate. There is no averment, it will be observed, that the fourteen dollars which constitute the uravamen of the offence charged, were ever exacted or paid, and no interest is now claimed as due for the nine years prior to 1855. The defendants in effect admit that the eighteen instalments of interest, whatever they were, accruing prior to that day, were satisfactorily arranged and paid. The idea of usury, therefore, is clearly an afterthought. It savors strongly of the nature of what the law denominates “stale demand,” and which the courts, especially when sitting in equity, invariably discourage.

Besides, the defendants’ answer, so far as it alleges facts and not inferences, may be perfectly true, and yet the loan may have been, as it probably was, engaged, and the money actually set apart in bank, on the first of the month, the intermediate three weeks being devoted to the preparation of the papers and the examination of the title. The question then is, does such a transaction—one of every-day occurrence, not in Wall-street, but among legal conveyancers—constitute in law a misdemeanor?—for the same statute, the one passed in 1837, which is invoked to make it void as a contract, if applicable, equally makes it punishable with fine and imprisonment as a criminal offence. In other words, the act done, if void, is for the same reason criminal; and if not criminal, is for the same reason not void. Gan any one, then, I repeat, imagine that the Legislature intended that dating a bond on the day of the loan was to be punished with imprisonment, if the money, although actually engaged and actually in, and kept in bank, was not actually paid over till the expiration of the usual time allowed and required for the examination on the borrower’s title ?—and that the offence too was to be deemed of such a heinous character that unlike other cases of penalty and forfeiture which are required to be prosecuted (if at all) within three years, this may in effect be prosecuted within nine or even ninety years after its alleged commission ? It is the practice, I am aware, to underrate the intelligence and good sense of our legislative bodies. The practice has, however, been considered as demonstrating neither the good sense nor the intelligence—certainly not the good taste— of those who indulge in it. Courts, at all events, may be excused for not pursuing it. I shall assume, therefore, until otherwise instructed, that the Legislature of 1837, whatever may have been their views of public policy, did not intend to enact an absurdity, not to say atrocity, such as the present defence implies.

Judgment for the plaintiff, with costs.  