The Hartford Fire Insurance Company, Appellant, v. George M. Hadden, Appellee.
APPEAL FROM THE COURT OF COMMON PLEAS OF THE CITY OF AURORA.
The statute which prohibits corporations from interposing the defense of usury, applies to insurance, as well as other corporat'ons.
A mortgage may properly be introduced in evidence, in an action on an insurance policy, as well as oral testimony, to identify the property mortgaged and destroyed.
By its policy of insurance, dated August 14, 1860, the appellant, the Hartford Insurance Company, insured Mr. Had-
(den, for two years, against loss by fire, in the sum of $1,500, on his mortgage interest in two wooden dwelling-houses, owned by JD. W. Young, of Aurora, Illinois, situated on lots one and three of the original town of Aurora.
On the 5th of November following, one of the houses in question, worth $2,400, was burnt; the other, worth $600, was not injured.
The present action was instituted upon the policy against the company, for a refusal to pay the loss.
Three special pleas were pleaded in bar of the action, the substantial averments of which may be briefly stated as follows:
That on the 5th day of March, 1859, Hadden lent to Young the sum of $1,500, for two years, to be secured by note and mortgage, as stated in the narr.; that the note and mortgage bore interest at the rate of ten per cent., payable half yearly; that to secure the payment of the $450, the amount of the remaining interest, which would accrue during the term of the loan, Young gave four notes of hand, with warrants of attorney, for $112.50, each payable at six, twelve, eighteen and twenty-four months after date, respectively, without interest; but to bear ten per cent, after maturity. That at different times, before the loss happened, Young had paid in all, $345 on said unlawful interest; alleging that Hadden had become liable to forfeit the whole of that unlawful interest, *261and claiming the right to have that sum applied in part payment and discharge of the $1,500.
The pleas were demurred to, and the demurrer sustained by Parks, Judge of the Aurora Court of Common Pleas, and upon trial had before him, by agreement without a jury, the issues were found for the insured, and a judgment entered in his favor for $1,520.50. The defendants moved for a new trial, filed a bill of exceptions, and appeal to this court.
Montenay & Seaele, for Appellants.
The statute which declares “That no corporation shall hereafter interpose the defense of usury in any action,” has no application in this case, and therefore the court below should have overruled each of the appellee’s demurrers to the appellant’s special pleas. See Jackson v. Collins, 3 Cowen, 89, and cases there cited; Curtis et al. v. Leavitt, 15 N. Y. 152, 153, 151.
Where the mortgagee insures solely on his own account, it is but an insurance of his debt. See Angell on Fire Ins., § 59, 60, 61, 62, 63 ; 5 Duer, 1; 5 Gilm. 266.
A. W. Windett, for Appellee.
The defense of usury must be specially pleaded by the party, and not by a stranger. Hadden v. Jones, 21 Ill. 384; Reading v. Weston, 7 Conn. 412; S. C., 8 Conn. 120; Lloyd v. Scott, 1 Peters, 206, 228, 229; French v. Shotwell, 5 Johnson Ch. Rep. 555, 565, 566; Bearce v. Barstow, 9 Mass. 46 — 48; Trumbo v. Blizzard, 6 Gill & John. 18, 23, 21; Jackson v. Henry, 10 John. 885; Spengler v. Snapp, 5 Leigh. 478; Fenno v. Sayne, 3 Ala. 458; Gray v. Brown, 22 Ala. 262; Denniston v. Potts, 26 Miss. 13; Campbell v. Johnson, 1 Dana, 177; Post v. Bank of Utica, 7 Hill, 106, per Wright; Knights v. Putnam, 3 Pick. 187; Merchants’ Bank v. Edwards, 1 Barb. 271; Cutter v. Robertson, 11 S. & M. 18; 10 Wheat. 393; et mult. al.