Kuhner v. Butler

Lowe, C. J. This was a mortgage foreclosure, in which the court below held that the defendant could not set up the defense of usury without first tendering plaintiff the amount admitted to be due. This ruling is a misapplication of the maxim that i{ he who seeks equity must do equity.” It is not the defendant in this case who is seeking to obtain independent relief from a hard contract as party plaintiff; but it is the creditor or lend [421] er who comes into court as complainant, seeking to enforce-against the defendant an illegal contract. Defending against, such a claim, as an involuntary party to the action, is quite a different affair from seeking relief in the character of-plaintiff; and it is unnecessary to refer, perhaps, to any. authorities to show that the above maxim has no application-to a case of this description. 1 Story Eq. 76-300. Reversed.