No. 9,059 | Neb. | Dec 19, 1899
This suit was instituted to foreclose a real estate mortgage given by one Parker F. Fugate to the plaintiff to. secure his promissory note for the sum of $3,200 given December 2,1889, due in three years thereafter and drawing interest at the rate of six per cent on $1,600. William H. Walker and Mary E. Walker purchased the mortgaged'premises, and assumed and agreed to pay the indebtedness secured by the mortgage. Fugate was not made a party to the suit, but the Walkers were, who pleaded that the mortgage was given to secure a loan of $1,600, and no more, which it is alleged was the sole amount of money received from plaintiff by Fugate, and that the transaction was usurious. Certain payments were also pleaded. The court found that plaintiff, a Dakota corporation, was entitled to recover the actual amount of money loaned, $1,600, with interest thereon at ten per cent from the date of the mortgage, deducting the actual amounts paid plaintiff by way of principal, interest, premiums or otherwise, with interest thereon at the rate of ten per cent from the dates of such payment, and a decree was rendered in favor of plaintiff for the sum of $390.89. To reverse the same it has prosecuted this proceeding in error.
The amount of the face of the note and mortgage was $3,200, and the rate of interest which the note stipulated should be paid was six per cent, yet the court, by its decree, allowed plaintiff only $1,600, the sum borrowed, and ten per cent interest thereon, less payments made and interest on the same. The defense of usury was not sustained to its fullest extent, else the plaintiff would not have been awarded any interest or costs. The plaintiff was entitled to recover the face of its mortgage with the stipulated'rate of interest after deducting payments, or the plea of usury should have been sustained in its entirety. It is not the province of the court to make new contracts for parties. This is elementary.
Reversed.