The appeal here is from final decree in a foreclosure suit. The defenses were interposed. One was to the effect that the mortgage was void because it embraced the separate property of a married woman and had not been acknowledged by her separately and apart from her husband. The other was that the mortgage and note which it secured were so tainted with usury as to require the forfeiture of double the amount of the bonus plus double the amount of the interest paid.
The cause was referred to a master to take testimony and make his findings. The master found in effect that the *Page 794 mortgage was not invalid because of defective acknowledgment and found that the transaction was usurious and that there should be a forfeiture of double the amount of the bonus charged and retained plus double the amount of the interest paid and that this should be deducted from the sum of $3150.00, which was the actual amount of money received by the borrower from the lender, though the note and mortgage were for $3,500.00.
Both parties excepted to the master's report.
The chancellor sustained the exception involving the question as to whether or not the forfeiture should be deducted from the amount of the face of the note and mortgage or from the amount actually received by the borrower from the lender, and held that it should be deducted from the amount of the face of the note and mortgage, and so entered his decree.
Appeal was taken and both parties have assigned errors.
The only reversible error which we find in the record is that committed by the chancellor in deducting the forfeiture of double the amount of bonus, plus interest, from the face of the mortgage and note. This should have been deducted from the sum of $3150.00, the amount actually received by the borrower from the lender. See Sullivan v. Thumm, 101 Fla. 1412, 136 So. 439; Hagan et ux. v. Need, 105 Fla. 297, 140 So. 916; Wilson v. Conner Knight Construction Co., 106 Fla. 6, 142 So. 606.
The decree should be modified accordingly.
For the reasons stated the case is now remanded to the circuit court with directions that the decree be modified to conform with the views herein expressed, whereupon it will stand affirmed.
The cost incident to this appeal shall be pro-rated equally between the parties and so taxed. *Page 795
It is so ordered.
Affirmed, with directions.
WHITFIELD, P. J., and BROWN and BUFORD, J. J., concur.
DAVIS, C. J., and ELLIS and TERRELL, J. J., concur in the opinion and judgment.