There was evidence tending to prove the assent of Dillenbeck, the surety, to the arrangement by which the bond and mortgage of Herter, the principal, was received in discharge of the judgment obtained against the defendants. The evidence given and that offered would prove that Dillenbeck aided Herter in bringing the suit to avoid the mortgage on the ground of usury. The surety went to the office of the attorney and made an affidavit, upon the strength of which a bill was about to be filed to avoid the substituted securities. Under these circumstances the plaintiff had a right to show that he was, by the act of the defendants, compelled to resort to the judgment or lose his debt. That it was the defendants, by combination, who sought to avoid the bond and mortgage of Herter and compelled him to abandon his foreclosure.
The case does not require a decision upon the question whether the usurer can insist upon a violation of the statute to defeat the contract to which he is a party. The question is, whether, when the borrower takes legal proceedings to avoid the agreement, the usurer is compelled to wait the judgment of a court and pay a bill of costs, before he is authorized to believe that the other party is in earnest. I think the judgment should be reversed.
TAGGART, J., concurred in the above. *Page 246
DENIO, J., having been counsel in the case, took no part in the decision.
Judgment affirmed.