126 S.E. 487 | S.C. | 1925
April 3, 1925. The opinion of the Court was delivered by "This is an action to foreclose a mortgage. The defenses set up are usury and insanity. It was tried before Hon. C. J. Ramage, Special Judge, who found for the plaintiff. The defendants appealed.
I. The defendants set up usury and insanity
The first assignment of error is that his Honor held that there was no evidence of usury. His Honor was correct. The appellant relics upon this statement to show usury:
"We paid the first $500 that was borrowed from him. It was paid back to him before the other papers were fixed in January, and, of course, we paid him $540. He charged us interest from August to January."
Appellant claims that the $40 was interest on $500 from August to January. It is not clear that it was interest only. The burden is on the defendants to make it clear that the $40 was for interest only. But suppose it was interest only. The statute (Civil Code 1922, page 3639) provides two remedies for usurious interest received. One is a separate *298 action, and the other is a "counterclaim in any action brought to recover the principal sum." This is not an action to recover the $500 loan. That loan of $500 "was paid back to him before the other papers were fixed." The two loans were separate and distinct so far as the money lender and the borrower were concerned. There is no evidence of usury in this second loan. This assignment of error cannot be sustained.
II. The next assignment of error is that his Honor was in error in finding that the obligors were of sound mind. There was no evidence that Mrs. Sallie Mabus was of unsound mind. It is true she had no education, but the record shows that she was a thrifty woman, of excellent natural ability. His Honor's finding as to Eustace Mabus is abundantly sustained by the evidence. The hearsay evidence as to the opinion of Dr. Watson was received without objection, and it is too late to object to it now.
All of the exceptions are overruled and the judgment appealed from is affirmed.
MESSRS. JUSTICES WATTS and MARION concur.
MR. CHIEF JUSTICE GARY and MR. JUSTICE COTHRAN did not participate.
