Suit to foreclose a mortgage. Defense, usury. Issue of fact. Trial by the Court, and judgment for the plaintiff for the amount of the debt and interest.
The evidence is upon the record, and is as follows:
Francis M. Heaton testified that the notes secured by the mortgage in suit, were given for the purchase-money of the land described in the mortgage; that witness drew up the notes; that he first drew them to the amount of 8,000 dollars, with 8 per cent, interest, but that, on consultation, the parties thought they would be illegal, and they destroyed those notes; that witness then drew up new notes for the 8,000 dollars, the price of the land, bearing 6 per cent, interest, being the notes mentioned in the mortgage, and for the other 2 per cent, he drew up separate notes, being those set up in the answer; that it was all one transaction, and the notes were given for the price of the land and the delay of payment. The notes for the 2 per cent, set up in the answer, had been paid.
Under our present statute, usury, or illegal interest, may exist, without the actual loan of money. The statute reads thus:
“If a greater rate of interest than is hereinbefore allowed [6 per cent.] shall be contracted for, or received, or reserved, the contract shall not, therefore, be void; but if, in any action on such contract, proof be made that illegal interest has been directly or indirectly contracted for, or taken, or reserved, the defendant shall recover costs, and the plaintiff shall recover only his principal without inter*259 est; and if interest shall have been paid thereon, judgment shall go for the principal deducting interest paid.”
We think the facts in this case bring it clearly within this section of the statute, and that the Court should have been governed by its provisions in rendering judgment.
Per Curiam. — The judgment is reversed with costs. Cause remanded, with instructions to the Court below to render judgment as the section provides in cases of usury.