In Brackett v. Barney, 28 N.Y. 333 the parties entered into a transaction where a bond and mortgage was given to the grantee, but since the transaction was usurious in nature one of the parties did not execute the bond and mortgage until a sum of money was refunded making the transaction non-usurious. The court held that although the bond and mortgage was in the possession of the grantee, delivery had not taken place until it was properly executed.