27 Neb. 658 | Neb. | 1889
This case was before this court at the January, 1888, term thereof, and an opinion filed therein, which is reported in 25 Nebraska Reports, 473, in which the facts are stated.
The defendants now move to modify the decree by requiring the plaintiffs to pay into the court for their use and benefit the sum of $335, with interest thereon; otherwise that the injunction be dissolved. An examination of the case will show that the court found that the contract was tainted with usury and that the amount thereof was represented by two of said notes. The court thereupon ordered the first and second notes canceled and enjoined the collection of the same, but dissolved the injunction as to the others.
Where a party goes into a court of equity to seek -relief from a contract which is deemed to be usurious, he must propose to do equity by offering to pay what is justly due. (Eiseman v. Gallagher, 24 Neb., 79); and had the notes all been due in this case when the action was brought, and the defendants, by appropriate allegations in their cross-petition, set up the necessary facts to entitle them to relief — the payment of the amount justly due — there is but little doubt that the relief would have been adapted to the facts pleaded and proved. No such relief, however, was sought in this case, the object of the action being merely to enjoin the transfer of certain notes and thereby prevent the defense of usury being pleaded in the action. The right of action to foreclose for the notes not canceled and enjoined still remains, and the property may be applied in satisfaction of the amount still due and unpaid, and we can
Motion overruled.
