Wheeler v. Hart

Perkins, J. Bill, under the old practice, for an injunction. Temporary injunction granted, but dissolved at the next term of the Court, on the coming in of the answer. Appeal to this Court. The facts are as follows: On the 17th of June, 1850, Wheeler was indebted to Hart, in the sum of 1,507 dollars and 91 cents. Hart held a mortgage, as security for payment, which contained a power to sell, &c. To induce Hart to give time, Wheeler agreed to pay 25 dollars a month usury, and assigned to him, as collateral' security for the 1,500 dollar debt, a mortgage on Pell and Wright, inserting in the assignment a power to sell, &c. Wheeler proceeded, in the manner pointed out, to sell the Pell and Wright mortgage, bidding it in himself. He was about to proceed to sell the land covered by the 1,500 dollar mortgage, when this bill was filed to restrain, such sale, and to restrain Wheeler from assigning the Pell and Wright mortgage, and to adjust accounts. The answer denied the allegations in the bill, so far as they charged unfairness, reception of usury, and intention to assign the Pell and Wright mortgage. If any ground for the injunction, as to the Pell and Wright mortgage, was shown by the bill, it was removed by the denial in the answer of any intention to assign it. No ground was shown for an injunction as to the 1,500 dollar mortgage. The statute then authorized the sale under the power of attorney; R. S. 1843, pp. 463, 464; and the time of payment, as extended, had elapsed. The statute is different now. 2 R. S. 1852, p. 239, s. 3. Perhaps if the original contract was not tainted with usury, any amount subsequently paid, if any was, to ob [585] tain extension of time, did not vitiate the original contract. As to this we decide nothing. See 6 Blackf. 378. Bnt on the final hearing, such amount, if any was paid, may be considered in adjusting the accounts between the parties. A. M. Crane, G. S. Orth and E. H. Brackett, for the appellant. JR. C. Gregory and JR. Jones, for the appellee. Per Curiam. The decree dissolving .the injunction, is affirmed with costs.