1. Defendants entered into an agreement with complainant's testator whereby payment of the full amount of a purchase-money mortgage held by the testator was extended for five years, with interest at six per cent., and in return promised to then pay the principal and interest in full without any claim, deduction, set-off, recoupment or counter-claim by reason of any breach or alleged breach of the covenant against encumbrances contained in the deed from the testator to the defendants, or by reason of any matter or thing arising in connection with a tenancy of the premises therein described. Held, that this amounted to an abandonment and waiver of the claims which defendants now make for credit on their mortgage.
2. The burden is on the defendants to prove beyond a reasonable doubt that the agreement was usurious, illegal and contrary to the statute.
3. Defendants paid interest quarterly without objection or protest for eight years, when they could have forced the issue of usury at any time during that period. They chose to wait until testator's death. Their defense of usury does not appeal favorably to the court, which is concerned with the question of whether the charge is made in good faith or merely as an expedient seized upon to escape liability.
4. At the time of the extension of the mortgage, defendants were entirely free to exercise their judgment whether to appeal to the law to establish their disputed claim, or to surrender it. There is nothing to show that they surrendered it under pressure brought by the testator in order to obtain an unjust profit thereby. Held, the defendants released and surrendered the claims they now asserted by the extension agreement and they are estopped from urging them; the proofs fall far short of establishing that the agreement was the result of a corrupt bargain entered into to evade the statute against usury.
5. Although the extension agreement does not contain a release of the testator's claim against the defendants for money due on the sale of his business to them, his failure to assert it is evidence that he waived it as part of the settlement between him and the defendants.
PER CURIAM.
The decree appealed from will be affirmed, for the reasons stated in the opinion of Vice-Chancellor Fielder, delivered in the court of chancery.
For affirmance — THE CHIEF-JUSTICE, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 13.
For reversal — None.