49 Kan. 219 | Kan. | 1892
The opinion of the court was delivered by
This was an action of replevin for the recovery of two horses owned by W. T. Grimes. He claims to be entitled to the possession of the horses, and he avers that the First National Bank of Meade Center took possession of them without right, and is wrongfully detaining them
It is next claimed that the court erred in charging the jury that—
“If you should find from the evidence in this case that the original note was renewed from time to time without making a new and separate contract, and that usurious interest was embraced in such renewal notes, then you are instructed that the mere renewal of the original note would not purge the transaction of usury, if you should in fact find that there was usury in the original note.”
It is contended by plaintiff in error that Grimes was not entitled to have the usurious interest applied in satisfaction of the principal of the debt, and Driesbach v. Bank, 104 U. S. 52, is cited as an authority against the instruction. An examination of the terms of the instruction, however, shows that it does not violate the rule stated in the case cited. As the plaintiff in error is a national bank, it is governed by the provisions of the national banking act relating to interest and usury, and not by the statutes of the state. The bank could not charge a higher rate of interest than was allowed by the aws of the state, and § 5198, of the Revised Statutes of the United States provides that—
“The taking, receiving, reserving or charging of a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate, of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same, provided such action is commenced within two years from the time the usurious transaction occurred.”
Under this provision, a national bank which knowingly stipulates for usury upon a note to be paid in the future forfeits the entire. interest, and in an action upon the same can only recover the face of the note, less the interest charged or
The instruction referred to is the only one about which complaint is made, and in it we find no error.
The judgment of the district court will be affirmed.