Thomas v. Mitchell

Dixon, C. J. In this case there were no exceptions to the findings of fact or conclusions of law in the court below, and therefore, according to the well settled practice in this court, there is nothing for us to review, except to see if the finding supports the judgment. And we think it clearly does. The court found as a fact that the defendant became the owner of the mortgaged premises by purchase, and, as a part of the consideration, agreed to pay the usurious mortgage then upon the premises, executed by John Mitchell, and which mortgage entered into and formed part of the consideration of the mortgage in suit, subsequently executed by the defendant herself. As a conclusion of law, the court said the defendant was precluded from setting up the defense of usury to this mortgage. Having obtained the title to the premises [418] subject to the usurious mortgage, which, as part of the purchase money or price, she agreed to pay, we suppose there can’ be no doubt as to the correctness of the conclusion of the court below, that the defendant was cut off from availing herself of the defense of usury. Such being the only possible question presented by the case as brought up, it follows that the judgment must be affirmed. By the Court. — It is so ordered. Lyon, J., having presided at the circuit when the cause was tried, took no part in the decision of the appeal. •