Opinion
Decided December, 1882.
A judgment of foreclosure on a mortgage, for the whole amount of the mortgage-note, is conclusive evidence of the validity of the note; and the defendant, having paid the amount of the conditional judgment, cannot maintain an action to recover back a part on a claim that usurious interest was a part of the consideration of the note.
ASSUMPSIT. Facts found by a referee. The plaintiff having given a note secured by mortgage, and a judgment of foreclosure having been rendered against him for the amount of the note, he paid it, and brings this suit to recover back a part on a claim that usurious interest was a part of the consideration of the note.
F. B. Osgood and Copeland Edgerly, for the plaintiff.
T. J. Smith and J. Hatch, for the defendant.
The judgment rendered against this plaintiff in the suit in which he could have pleaded usury, is conclusive evidence of the legality of the mortgage-note. Cooke v. Jones, Cowp. 727; Edmonson v. Popkin, 1 B. P. 270; Flint v. Sheldon, 13 Mass. 443, 452, 453; Thatcher v. Gammon, 12 Mass. 267; Footman v. Stetson, 32 Me. 17; Tibbetts v. Shapleigh, 59 N.H. 319. "If there be a bona fide legal process under which money is recovered, although not actually due, it cannot be recovered back, inasmuch as there must be some end to litigation." Cadaval v. Collins, 4 A. E. 858, 867.
Judgment for the defendant.
BLODGETT, J., did not sit: the others concurred.