Neil v. Bunn

Jackson, Judge. Tbe defendant filed two pleas in bar of tbe foreclosure of tbe mortgage, both of wbieb were stricken. Tbe error assigned bere is tbe act of tbe judge in striking these pleas. 1. Tbe first was usury. The note, to secure which tbe mortgage was given, was made in 1871, and due in 1875. The mortgage was made in 1874, when there was in this state no limitation upon tbe rate of interest, and when tbe mortgage was executed it was agreed that interest should run at 10 per cent, from tbe maturity of tbe note. Ye think that [584] this plea was properly stricken. The seal to the mortgage imports a consideration for the increased interest, and it is not alleged that there was no consideration therefor. At the date of the mortgage the parties could stipulate for any interest. 2. The second plea was, that the consideration of the note and mortgage was land; that plaintiff had given his bond for title to certain lots, and, when he made his deed, had left out one lot, worth $300.00; but there was no allegation that it was left out by fraud, accident or mistake, or even without the consent of the defendant, who accepted the deed as written. We think that the plea was not such an equitable plea as would authorize the deed to be reformed, or the $300.00 to be set off or recouped, as the party had accepted it, and seemingly acquiesced in it until the mortgage was pressed for foreclosure. Judgment affirmed.