The defendant in error brought his action against the plaintiff in error to recover certain money which he alleged the plaintiff in error owed his intestate. To this action the defendant filed a plea of usury. Issue was taken on this plea, and the jury found that issue in favor of the defendant. The plaintiff moved the court for a new trial, which was granted, and defendant excepted to this ruling of the court, and assigns error thereon.
1,2. We might content ourselves with this ruling of the court by saying that, as this is the first grant of a new trial upon facts which are close and contested, the discretion of the court in such a case will not be disturbed. But we think that there are some things in this case which merit our special attention. The plaintiff demurred to the plea of usury, and now insists here that there can be no usury in a note given for land. We do not think that this position of the able counsel is sustained by the authorities. Where land is sold at a cash price, and time is given by the vendor to the purchaser upon a portion of the purchase money, and a greater rate of interest than that allowed by *742law is charged for such time, the contract is usurious; and we think the following authorities sustain this proposition: 11 Ind., 258; 15 Id., 60; 21 Id., 129; 52 Ga., 69; 59 Id., 546, 584; 10 Smedes & Mar., 89; 12 Id., 631; 36 Ark., 253; 2 Richardson Law Rep., 73; Acts 1878-9,184. And, while we think that this is good law, yet we recognize the rule that there may be a cash and a credit price for land as well as anything else, and it is lawful and not usurious for one selling land or other property to charge more for such property when sold on time or credit, as it is called, than when sold for cash. The defendant in error insists that the land was sold partly for cash and partly on credit or time, and that as to such part as was sold on time, the parties calculated the interest on the cash price at twelve per cent, so as to ascertain the credit price, and that this was done with no intent to charge unlawful interest, but merely to ascertain the credit value-of the land. We recognize this proposition to be sound But if the contract was that the land was to be purchased at a cash valuation, and that certain payments therefor were to be deferred in consideration that a greater rate of interest than that allowed by law was to be paid by the purchaser, then such a contract would be usurious. We have carefully examined the plea of usury in this case, and we think that the court did right to overrule the demurrer thereto
3. The charge of the court was full, fair and impartial, and presented clearly the law of the case to the jury, but as he has thought proper to grant a new trial in the case, he having tried the case and being near all the witnesses, the evidence being quite close, and in his judgment justice requires another hearing of the case, we cannot say that he abused his discretion in giving the case the direction he did.
Judgment affirmed.