Log Cabin Permanent Building Ass'n v. Gross

Robinson, J., delivered the opinion of the Court. The appellee, Gross, bought of Jacob Saurn, two lots of ground in Baltimore City, one on Fulton street, and [457] the other on Eagle street. Each of these pieces of property was, at the time of the purchase, encumbered by a mortgage to the appellant Building Association. The mortgage on the Pulton street property had been created by Sarah P. Carle, and her husband, from whom Saum, the grantor of the appellee, acquired title; and the Eagle street property had been mortgaged by Saum himself. Now, in the view we take of this case, it is quite unnecessary to consider whether these mortgage transactions were in any sense usurious, because dross, the purchaser, it is plain, has no right to make such an objection. He has no right, because he agreed to pay to the Building Association, the mortgage debt according to the face of the mortgages, in part payment of the purchase money due on the two houses. The proof shows, beyond question, that the precise amount due by Saum to the Building Association on the mortgages was ascertained at the time of the purchase by dross, and that he agreed to pay the amount thus ascertained to the association in part payment of the purchase money. If, then, he is allowed to claim a reduction of the mortgage debt by reason of the alleged usury, he would be getting the property for a sum less than he agreed to pay. The case falls directly within Hough vs. Horsey, 36 Md., 181, and Fulford vs. Keerl, ante, 397. These cases proceed on the ground that where one purchases property subject to an encumbrance, which was usurious, and the nominal amount of such encumbrance enters into and forms part of the price or consideration to be paid for the property, he will not be allowed to set up usury in reduction of the amount appearing to be due on the face of the mortgage. It follows from what we have said, that the auditor's report filed the 10th of December, 1888, ought to have [458] beep ratified, and that tbe appellant’s exceptions to the auditor’s report, filed 20tb December, 1888, oug'lit to bave been sustained. (Decided 17th December, 1889.) Decree reversed, and cause remanded.