71 P. 612 | Idaho | 1903
This is an action to foreclose a mortgage on real estate, executed by respondents to appellant on the twenty-second day of August, 1898, to secure the payment of a promissory note for $700 of the same date, bearing interest at the rate of ten per cent per annum. The answer admitted the execution of said note and mortgage, but denied that there was anything due thereon except the sum of ten dollars, averred that said evidences of indebtedness were usurious, and that the principal debt thereof had been fully paid, except said sum of ten dollars. It.is averred in the answer that said note and mortgage were given in renewal of a certain bond, with interest coupons attached, and mortgage to secure the payment of the same, and were executed by respondents on August 1, 1889, for $1,100, with interest thereon at the rate of ten per cent per annum, and that it was provided in said coupons that they should bear interest at the rate of twelve per cent per annum if not paid when due. The cause was tried by the court without a jury, and judgment was entered in favor of the appellant for $175, without costs or attorney’s fees. This appeal is from the judgment.
The facts are substantially as follows: On August 1, 1889, the respondents, together with two other persons, now deceased, obtained a loan of $1,100 through James H. Bacon, of Salt Lake City, state of Utah, and certain loan brokers residing in the state of Nebraska, with interest thereon at the rate of seven per cent per annum, interest payable semi-annually, according to the tenor and effect of ten coupon interest notes, which provided for interest upon them after they became due. Said bond and mortgage were assigned several times, and finally came into the hands of appellant. When the debt became due, respondents secured an extension of the loan for two years by paying $100 on the principal and agreeing to pay interest at
It is conceded by counsel for appellant that the bond of. August 1, 1889, for $1,100 was usurious, but it is contended that the contract of August 22, 1898, purged that contract of usury, and that the <■ promissory note for $700 and the mortgage securing its payment possess no taint of .usury. It appears from the record that when the first suit was brought to enforce the payment of said- debt there were $1,300 due appellant, and that when it was ascertained that respondents were about to plead usury she consented to reduce her claim to $700, thus taking $600 less than she claimed was actually due under the terms of the contract. The respondents accepted the offer, and executed a new note and mortgage for and to secure said $700, the intention being to purge said contract of usury. David Kunz, one of the respondents, testified on the trial, among other things, as follows: “The agreement at the time the new note and mortgage was executed was that Ave execute a new note and mortgage for $700 and the suit be dismissed. This was done. About $600 was knocked off, and that part of the land — one hundred and twenty acres — belonging to John Kunz was left out.....They agreed to take a straight note, and knock off $600, and I agreed to pay that amount. I have never made any objection to the payment of this $700 note. I paid interest on it for two years. I have not claimed any usury in the matter.” This testimony clearly shows the intent and purpose of the compromise agreement. It is also contended by counsel for respondents that, as the $700 note sued on herein is only a renewal of a usurious obligation—