81 Ga. 691 | Ga. | 1889
Small sued Hicks and Walker upon a promissory note. Hicks pleaded usury, and Walker pleaded that he was a mere security on the note, and that at the time he became security, it was understood and agreed between the parties that Hicks should give Small a mortgage, with waiver of homestead and exemption, upon certain mules and a wagon, to secure the payment of the note; that the mortgage was accordingly given, but that in taking the mortgage, Small took more than the lawful rate of interest from Hicks, and thereby rendered the security valueless and the homestead waiver of no effect, so that Hicks could take • a homestead in the property, which he did; in consequence of which Walker’s risk and liability, were increased; and that he was therefore discharged from his obligation as surety.
“We, the jury, find one and 62-100tks dollars usury, and also find for B. F. Walker.”
Thereupon the court directed the plaintiff to enter up judgment; but the plaintiff' declined to enter any judgment on this verdict, and told the defendants to do so; and the defendants entered up judgment against Hicks for the amount of the principal and interest due on the note, save and except this small, amount of usury stated in the verdict, and also directed in the judgment that Walker be discharged, and the court-signed the judgment. Small excepted, and brought the ease to this court. No exception is taken to the finding of the jury as to the amount of usury, as being contrary to law and the evidence, and the presumption is that the finding is correct as to that.
Judgment affirmed.