Frost v. Shaw

BaldwiN, J. The question presented in this caséis, whether a person not privy to an usurious contract has a right to plead such usury when not authorized to do so by the party agreeing to pay the usurious interest. In this case, Shaw and his wife are willing to stand by their contract, and have no such plea to interpose. They are the only parties upon whom such contract operates unjustly and yet they make no complaint. Simmons purchased the real estate fully advised of the amount of plaintiff’s lien thereon, and being thus advised of such lien, it must be presumed he took the same subject to plaintiff’s equities. It has been held by this court in Hollingsworth v. Swiekard, ante, that the plea of usury could not be interposed by a person not a party to the contract alleged to be usurious. In this case, Simmons was not a party to the contract on which plaintiff seeks to recover. A judgment against Shaw and wife in no manner affects him. It does not increase his liability to Shaw, nor can any judgment be rendered against him for the amount forfeited to the State by the act of the parties to the illegal contract. [493] We think that the demurrer of plaintiff should have been sustained. Judgment reversed.