(After stating the facts.) 1. It is legally possible for one person to buy property from another and agree to resell it to the vendor at a higher price payable in future. If such be the actual transaction, the law will enforce it. The difficulty frequently-arising is to determine whether in a given instance the parties intended a sale or a mortgage. Felton v. Grier, 109 Ga. 320; Spence v. Steadman, 49 Ga. 133; Monroe v. Foster, Id. 514. If Blouen-stein in fact 'bought the diamonds from Judson with the assent of Mrs. Rogers, and agreed to sell them to her at an advanced price payable in the future, there would be nothing unlawful about it. If in fact the transaction was one by which Blouenstein loaned. Mrs. Rogers a sum of money at a usurious rate of interest, it was: illegal, and the title so obtained was tainted with usury. The transaction, being on its face apparently lawful, might nevertheless; be shown to be a device for concealing usury. But the burden of proving this rested on the party asserting it. Morrison v. Markham, 78 Ga. 161; Einstein v. Butler, 65 Ga. 561; Wilkins v. Gibson, 113 Ga. 31(5); Civil Code, §2892. There was a considerable amount of evidence tending to show that in fact the title of the defendant was tainted with usury; but it was not free from conflict. In addition to what appeared on the f ape of the papers, when .asked, in regard to a loan to the plaintiff, the defendant testified: “There.was no loan with her. . . As to how much money I let Mrs.. Rogers have, I never had a contract with Mrs. Rogers. The bill of sale shows what I paid Judson. I don’t remember exactly- — -$413, or something, . . and I gave an option to purchase back on the 14th of February, 1903.” If the jury based their verdict on the belief that this was in fact a sale with an agreement to resell, we can not say that they were without evidence authorizing them to do so.
2. The plaintiff in error alleges that the court erred in charging that if the diamonds were conveyed to the defendant as a security for a debt which was tainted with usury, and not in fact as a sale with the right to repurchase, and if she tendered the defendant the *504amount of money due upon her contract with him, and it was refused, she would be entitled to recover the difference between the amount of her debt at the time of the tender and the highest proved value of the property since the date of such payment. It is contended that if the diamonds were pledged as a security for a loan, the pledgor would be entitled to redeem the property pledged regardless of the question of usury. If this-be conceded, there was nevertheless no harmful error in the charge. If what transpired between the parties amounted to a pledging of the diamonds to secure a debt, the amount fixed for their return or reconveyance was, without any controversy, greater than the amount advanced with legal interest. The plaintiff contended that there was usury, and in making the tender her attorney calculated the rate which he alleged had been previously charged. We think the charge of the court, if erroneous, could not have injured thé plaintiff.
