
    Powell v. Hunt et al.
    
    1. Usury : vrao can plead. A junior mortgagee can not avail himself of the usury in the consideration of a prior mortgage; following Hollingsworths. Swic/card, 10 Iowa 385; Frost s. Shaw, lb. 491.
    
      Appeal from Johnson District Court.
    
    Thursday, April 11.
    
      Mackey § Bradley for the appellants.
    It is not competent for a subsequent mortgagee' to set up usury in the prior incumbrance. That is a personal defense and can be made only by the borrower, his sureties, his devisees and representatives or those persons who are bound by the original contact to pay the sum borrowed. Sands v. Church et al, 2 Seld 847 ; Mechanic s Bank v. Edwards, 1 Barb. S. C. R. 272; S. C., 2 lb. 545; Beading, v. Weston, 7 Conn.; Be Wolffe v. Johnson, 10 Wheat. 367, 292; 20 Maine 28; 5 Taunt. 784; 22 Ala. 278; Post v. Bank of Utica, 7 Hill. 391; 3 Barb. S. C. R. 332; Frost v. Shaw et al, 10 Iowa 491; Hollingsworth v. Sivickard, lb 385.
    
      Clark ^ Bro. and Clarke Sc Bavis for the appellee.
   Lowe, C. J.

The plaintiff’s statement of his complaint is, that he holds a note of thirteen hundred dollars against the defendant, Hunt, dated 19th of May, 1857, payable in one year, and secured by mortgage on lot 3 in block 2, situated in that part of Iowa City known as the county seat. That one Etheil C. Lyon also holds a claim against the said Hunt, consisting of two notes of $1000 each, given for the loan of $1600, dated 26th July, 1856, payable in one year, drawing ten per cent interest from date, and secured by mortgage on the same lot. At the October Term 1858, the said Lyon obtained a judgment of foreclosure for $2448,68 by consent, with a stay of execution for one year. That on the 9th of December, 1856, one Charles Berryhill loaned the said Hunt $800 for one year, and took his note for $1000, to draw two per cent per month after due, if not paid ; also secured by mortgage on the same lot. At the January Term 1859, Berryhill obtained hi's judgment of foreclosure for $1065. On this judgment the mortgaged premises were sold to Berryhill by the sheriff for $1108,39. In these proceedings of foreclosure plaintiff was not made p. party, no.r was usury set up as a defense by Hunt. Plaintiff claims that Lyon was only entitled to $1600 and Berryhill $800; which sums of money he tendered to them respectively, together with six per cent interest on the same, which was refused by them.

. The plaintiff asks a judgment of foreclosure upon his own mortgage, that the equities of the senior mortgagees be adjusted, and that they be decreed to accept from the plaintiff their principal debt, deducting the usurious interest, and that they assign their several judgments to plaintiff, &c. The 'defendant Lyon demurs to that portion of the petition which claims that the plaintiff, being a subsequent mortgagee, can set up the defense of usury for Hunt, &c. Demurrer overruled, exceptions taken, and the cause comes up on this point. .The demurrer should have been sustained. Frost v. Shaw et al, 10 Iowa 491; Hollingsworth v. Swickard, Ib. 385; 2 Pars, on Oontr. 397, 8, 9; 20 Johns. 667; 1 Barb. 272; 22 Ala. 273.

Reversed.  