Appeal of Bonnell v. Smith

Opinion by Mr. Justice Green: We are unable to discover in the appellant’s affidavit any defense of which he can avail himself. He sets up nothing but usury paid by the mortgagor, but he does not aver that-the mortgagor desires to defend on that ground. The mortgagor is the defendant in the scire facias, and if he desires to make the defense of usury, he can do so. But in the present state of the law that defense is personal, and if the debtor does not choose to make it, one who is a stranger to the contract cannot. When the appellant bought the land of the mortgagor the mortgage in [10] question was spread upon the record, and he bought with his eyes open. He knew the precise amount of the lien which encumbered the land just as well as if it had been a judgment. In Miners’ Trust Co. Bank v. Roseberry, 81 Pa. 309, we held that when an owner of land borrowed money at usurious interest and gave a bond for its payment, on which judgment was entered, and he was afterwards adjudged a bankrupt and his land was sold by the assignee, the purchaser could not have the judgment reduced by the amount of the usury. In the opinion all' the recent decisions were reviewed, showing the changes in our usury law. Merour, J., said: “The defendant in error does not claim as a creditor. He claims as a 'purchaser at a sale made several months after the entry of the judgment. He bought with full notice of its existence. He knew that he bought subject to its encumbrance. Presumably, he paid a sum equal to the amount of the judgment less than he would otherwise have done. He was not defrauded. He got just what he purchased.” We are unable to see how the fact of a general warranty in the appellant’s deed changed the situation. The right of action on that covenant remains; but how it can confer a right to the covenantee to set off usury against the mortgagee which the mortgagor, who is the covenantor, does not choose to assert in defense against the mortgage, we cannot understand. Judgment affirmed.