concurring: I concur in tbe opinion of tbe Court by Mr. Justice Allen upon tbe ground that tbe demurrer should be overruled because tbe complaint states some cause of action. Tbe plaintiff has a right, in my opinion, to maintain tbe action for tbe purpose of ascertaining what is “legally collectible on said mortgage,” as that is tbe contract under which be purchased tbe land. What is “legally collectible on the mortgage” cannot be determined upon demurrer. It can only be adjudicated when tbe facts are found by tbe trial court. Tbe plaintiff, having purchased tbe land from tbe mortgagor, subject to tbe mortgage, has no right to set up tbe plea of usury against tbe mortgage debt on bis own account. Tbe only person who can do that is tbe mortgagor himself.
As said by Mr. Justice Hoke in Riley v. Sears, 154 N. C., 519, speaking for a unanimous Court, “It is undoubtedly a sound proposition that if one buys property and agrees to take up a note affected with usury, as a part of the purchase price, be cannot maintain tbe defense of usury against tbe note, and for tbe very sufficient reason that as to him tbe obligation is not for the loan of money.” The same principle is laid down in Doster v. English, 152 N. C., 339; Yarborough v. Hughes, 139 N. C., 204; and Stuckey v. Construction Co., 61 W. Va., 74.
It must be borne in mind that tbe plaintiff in this ease is seeking tbe aid of tbe Court to ascertain tbe amount legally due on tbe mortgage, and be is not “tbe party against whom tbe action is brought.” Therefore, it is possible that be may be brought within'the maxim of equity that requires one who seeks equity to do equity." These matters can only be determined when tbe evidence has been taken and tbe facts are found.