An examination of the reported cases shows a considerable conflict of authority as to who may take advantage in a contract or obligation infected with usury, some holding that none but an original party to the usurious contract, or, in case of his death, his representative, can plead the usury; while others allow the owners of the estate bound or incumbered by the contract, and even creditors, to insist upon the usury. But as that question does not legitimately arise in this cáse, we shall abstain from a review of these decisions, and from expressing an opinion on the subject.
Thompson, the original party to the usurious notes and. mortgage, and who has actually paid the usury which is now sought to be applied in satisfaction of the principal, is a complainant in the bill, as well as the subsequent mortgagees. These last might have been omitted altogether, but the joining their names as complainants with Thompson, does not impair his right to insist upon the usury. To the merits of this bill thus filed by Thompson and the others, the defendants answered, upon which issues were formed, without any question being raised as to Thompson having authorized the use of his name as complainant. The question was asked Aiken, during his examination, if Thompson had authorized the use of his name as complainant; to which he replied, that he did not know that he had. This attempt to prove that the use of the name of Thompson was unauthorized, was out of place and illegitimate at that stage of the case. Had the defendant intended to question Thompson’s position as complainant, he should have done so at a preliminary stage of the suit and in proper form, so as to have given Thompson an opportunity to come in and show the transaction, or the other complainants an opportunity to show that he had authorized the use of his name as complainant. When this testimony was taken, there was no issue before the court to which it could apply. By answering Thompson’s bill, he admitted it was properly filed and upon due authority. There was then no question before the court on that subject. It was a matter already admitted and determined.
If Thompson had paid usurious interest upon the loan to secure which the mortgage was given, he had a right, at any time before the final statement of the debt, or before it had been adjudicated upon by judgment or decree, to claim the benefit of such usurious payment. Suppose, instead of advertising the property for sale in pursuance of the terms of the mortgage or trust deed, Johnson had filed a bill to foreclose the mortgage, there can be no doubt that he could have insisted, under our statute, upon the usury paid, and had it applied in extinguishment of the principal; or had he been sued upon the notes, he could have availed himself of the same defense. Such is the settled construction of the statute in this court.
The only remaining question is one of fact. Does the proof show that the mortgage and notes were given to secure a usurious loan of money, and did Thompson pay the defendant usurious interest to the amount found by the court below and credited upon the principal sum ? We have looked into the testimony on that subject, and are satisfied with the finding of the Circuit Court. As a mere question of evidence, it would settle no principle of law which would justify us in swelling an opinion with a review and an analysis of the evidence. We shall therefore content ourselves with expressing our approval of the finding of the court below.
The decree is affirmed.
Decree affirmed.