No. 22941 | Miss. | Mar 15, 1923
delivered the opinion of the court.
This is an appeal to settle the principles of the case, from a decree overruling a demurrer to an original and amended or supplemental bill, and a motion to dissolve a preliminary injunction which had been granted thereon.
The bill alleges that the complainant, Jones, borrowed the sum of four thousand five hundred dollars from the defendant, Brewer, on February 25, 1914, and executed his ten promissory notes therefor, each being for the sum of four hundred fifty dollars, plus eight per cent, interest on the debt due; that is to say, the first note included eight per cent, interest on the four thousand five hundred dollars to January 1, 1915, the second note included interest on four thousand fifty dollars from January 1, 1915, to January 1,1916, and so on through the series. Several of these notes were paid after their maturity but before the filing of the bill and the complaint therein is that Brewer coerced Jones into paying him money in excess of the face of these notes and interest thereon by threatening to foreclose the deed of trust, which payments the complainant contends constitute usurious interest on the notes and are sufficient to liquidate the notes which had not matured when the bill was filed. After the filing of the original bill, Brewer, in accordance with a provision to that effect in the deed of trust declared the whole debt due and was proceeding to collect it by foreclosure, in accordance with the terms of the deed of trust, when the amended or supplemental bill was filed and injunction granted restraining the foreclosure. The bill prays for an account, and complainant offered therein to pay any amount that may be found due by him to Brewer. The alleged payments of usurious interest seems to have been made more than three years before the filing of the bill of complaint.
The grounds on which the appellant seeks to sustain his demurrer and motion to dissolve may be reduced to two: First, it affirmatively appears from the bill that the complainant entered into a corrupt agreement with the de
It is true that both the borrower and the lender violate the law in contracting for, paying and receiving usurious interest, but that fact does not bar the borrower from recovering such interest by suit against the lender, for the prohibition against usurious interest is not only for the protection of the person paying it, but the right to recover it by suit is expressly given to him by section 2678, Code of 1906 (Hemingway’s Code, section 2075). '
Though evidenced by several promissory notes, the debt due by Jones to Brewer, as long as all of the notes remain in Brewer’s hands, was the four thousand five hundred dollars borrowed, with interest thereon, and the payment by Jones of any one of the notes was therefore necessarily a payment on the whole debt. Consequently no question of these alleged payments of usurious interest by Jones being barred by any statute of limitations can arise, for all such payments were by operation of law payments on the balance of the debt due from Jones to Brewer, and against payments no statute of limitations runs. Polkinghorne v. Hendricks, 61 Miss. 366" court="Miss." date_filed="1883-10-15" href="https://app.midpage.ai/document/polkinghorne-v-hendricks-7986002?utm_source=webapp" opinion_id="7986002">61 Miss. 366; Union National Bank v. Fraser, 63 Miss. 231" court="Miss." date_filed="1885-10-15" href="https://app.midpage.ai/document/union-national-bank-v-fraser-7986304?utm_source=webapp" opinion_id="7986304">63 Miss. 231.
We must not be understood as intimating that these payments would be barred in event they were a mere set-off against the notes which Brewer now seeks to collect. We leave that question unaffected hereby.
Affirmed and remanded, with leave to the appellant to answer within thirty days after the filing of the mandate in the court below.
Affirmed and remanded.