1. Tendee : usuey : fokeclosuee. Usury may be pleaded as a defense in a proceeding to foreclose a mortgage Arithout an allegation of a tender of the amount admitted to be due from defendant to plaintiff.
Appeal from Johnson District Court.
Saturday, October 16.
The facts are stated in the opinion of the court.
Clark $ Bro. for the appellant,
relied upon Kuhner v. Butler, 11 IoAva 419, and Story Eq. Jur. ยงยง 64 e, 300, 301, and contended that Phelps v. Pierson, 1 G. Greene 127, is inapplicable.
McKay Bradley for the appellee.
Foreclosure of a mortgage. A defense of usury Avas set up without tendering the amount of the princi*186pal, on which account a demurrer was filed to the answer, the same sustained and the cause appealed.
Precisely the same question was raised in the case of Kuhner v. Butler, 11 Iowa 419, and the ruling of the court below in that case was held to be error, and reversed; as we also reverse this for the reasons assigned in the case referred to.
Reversed.
12 Iowa 185
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