Warden v. Buell , 18 How. Pr. 256 ( 1859 )

By the court—T. E. Strong, Justice.

Flanders executed a bond, together with a mortgage on real estate; and afterwards conveyed the mortgaged premises to Buell. This action is for a foreclosure of the mortgage, and a judgment against Flanders for any deficiency there may be after a sale of the premises. Buell has answered, setting up as a second defence the defence of usury. Flanders has not answered. On the trial of the issues, Flanders was called by Buell as a witness, to prove the usury, and he was rejected upon an objection by the plaintiff, to his competency to prove that defence.

It is claimed, on the part of Buell, that Flanders was a competent witness under section 397 of the Code. That section provides, that “ a party may be examined on behalf of his co-plaintiff, or of a co-defendant, as to any matter in which he is not jointly interested or liable with such co-plaintiff or co-defendant, and as to which a separate and not joint verdict or judgment can be rendered.” We think Flanders was not a competent witness under that section. He could not give any testimony to establish the usury, which would not benefit him equally with Buell. If that defence should be sustained, the action would be defeated as to him as well as to Buell. Ho judgment could be entered against him, although he did not answer, if Buell prevailed on that defence. The case is not, therefore, one in'which separate judgments could be rendered as to Flanders and Buell, in respect to the matter of that defence ; and it is a case in which a joint judgment could be rendered in their favor as to that matter. In our opinion, they were, therefore, jointly interested or liable, so far as that defence is concerned, within the meaning of the section in question.

There is a wide and important difference between this case and the case of an action under the statute of 1832, as amended, or section 120 of the Code, against the makers and indorsers of a bill of exchange or promissory note. In the latter case, the action is upon several distinct and independent contracts. The defence of one party cannot be of any avail to another. The drawer, or any indorser, may defeat the action as to him for usury, and yet any other separate party be held liable on his own contract. In the present case, the basis of the action is the bond and mortgage, a single contract, and if they are adjudged invalid for usury, the action as to all is subverted.

We do not consider whether Flanders might not have been a competent witness in his own behalf, under section 399 of the Code, on the issue between Buell and the plaintiff. If he would have been he should have been offered as such, that the plaintiff might, if the fact was so, object to the want of the requisite notice to him of the examination.

The judgment must be affirmed with costs.