(after stating the facts).
(1) There is no usury on the face of the account or the mortgage. Appellant admits the execution of the mortgage and that same was given to secure an amount then due, and sets up in defense the plea of usury. The burden was therefore upon appellant, by competent testimony, to establish his p'le,a\.
(2) Conceding, without deciding, that the administrator of the estate of W. P. Thompson was not a proper party, it is a fact nevertheless that the administrator, from the inception of the cause to its final hearing by the trial court, was a party plaintiff. Appellant, neither by demurrer nor answer raised any objection to the capacity of the administrator to join in the suit, and he must be deemed therefore, under our statute and decisions, to have waived such objection. Kirby’s Digest, secs. 6093-6096.
As early as Gossett v. Kent, 19 Ark. 602, 607, this court said: “In cases of misjoinder of .plaintiffs the objection should be taken by demurrer, for if not so taken, and the court proceeds to a hearing on the merits, it will be disregarded, at least if it does not materially affect the property of the decree.” In that case it appeared on the face of the bill that one Smith was improperly made a party complainant. He had no interest in the subject of the suit and no relief was prayed for him — a stronger ease than the one at bar.
In the ease of Pettigrew v. Washington Co., 43 Ark. 33, we held that objections to the plaintiff’s capacity to sue must be taken by demurrer or answer, else they will be deemed to have been waived. Such has been the uniform holding of this court. See Murphy v. Myar, 95 Ark. 32; Kraft v. Moore, 76 Ark. 391; Hot Springs R. R. Co. v. Tyler, 36 Ark. 205.
(3) The appellant allowed the cause to progress to a decree without raising any objection to the joinder of the administrator of W. P. Thompson as a party plaintiff and to the capacity of the administrator to sue. The appellant, without raising such objection, presented his own deposition in support of his charge of usury. The court held that his testimony relating to the conversation between W. P. Thompson, deceased, and himself, tending to show a usurious contract, was incompetent. Appellant here challenges such ruling. It was the duty of the chancery court to hear and determine the cause between the parties to the record and to consider only the competent testimony as between such parties.
(4) Under section 2 of the .schedule of the Constitution of 1874, neither party shall be allowed to testify in actions by administrators, in which judgment may be rendered for or against them, as to any transactions with or statement of the intestate.
In McRae v. Holcomb, 46 Ark. 306, we held that this provision of the Constitution applies only to parties to the record. In Stanley v. Wilkerson, 63 Ark. 556, we held, under the above provision, that “it is not the interest in the issue to be tried that renders incompetent, but the being a party of record to that issue;” that “competency or incompetency of the party as a witness is to be determined relatively to his status at the time he was proposed and objected to as a witness.” See also Snyder v. Harris, 61 N. J. Eq. 480.
Now, as we have shown, at the final hearing of this cause the administrator of W. P. Thompson was a party plaintiff to the record, and if a judgment had been rendered in favor of the appellant, such judgment would have necessarily resulted in a judgment for costs against the administrator, and even though no other judgment might have been rendered against the administrator, such judgment for costs might have been a substantial judgment, and will' be treated as one calling for the application of the constitutional arid statutory provisions requiring the exclusion of the testimony of the appellant relating to the alleged usurious contract between him and the deceased, W. P. Thompson. Bush v. Prescott & N. W. Ry. Co., 83 Ark. 210, 213; See. 2, Schedule of Const., supra; Kirby’s Dig., sec. 3093.
“The object and purpose of these statutes,” says Mr. Jones, “then is to guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party, and further to put the two parties to a suit upon terms of equality in regard to the opportunity of giving testimony. If one party to the original transaction is precluded from testifying by death, insanity or other mental disability, the other party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction. The sources of original information on the part of the representative of the deceased or incompetent person are so inadequate as compared with those of the surviving party that the law presumes the representative to be utterly unable to testify as to the details of the transaction, and hence excludes the adverse party.” 4 Jones’ Com. on Evidence, sec. 773, p. 628.
As was said by the Supreme Court of Florida, “ What'the living knows or would testify is excluded, because what the dead would testify if living cannot be or is not given in evidence, or because his representatives or assignee is not himself so acquainted with the facts of it as to encourage him to go upon the stand.” Harris v. Bank of Jacksonville, 22 Fla. 501, 1 Am. St. Rep. 201, 1 South. 140.
The rule of our Constitution finds just and appropriate application under the facts of this record because the alleged corrupt agreement which appellant claims rendeied the account and mortgage in suit usurious was had alone, according to the testimony of the appellant, with the deceased partner, W. P. Thompson. Appellant’s testimony falls both within the letter and the spirit of the provisions of our Constitution and the statute based thereon. Eliminating the testimony of appellant, the other testimony is not sufficient to establish the plea of usury.
(5) The testimony of Jones to the effect that he heard Thompson tell appellant that he would charge him 10 cents on the dollar, that is, if he got $5.00 he would charge him 50 cents interest and make the charge $5.50 and that if he bought goods he would add a 10 per cent, charge when the goods were put down on the books, was not sufficient to prove usury, for this testimony falls short of showing that the 10 per cent, interest on the money and the 10 per cent, charge on the goods was to be for a less period than one year from the time the money was advanced and the goods purchased. The witness who gives this testimony states that he did not know for sure that anything was said about when the account would be paid.
(6) The court cannot take judicial knowledge of when an account between a merchant and his customer is due. Usury cannot be established by presumption. The presumption is that parties will obey the law and not enter into a corrupt agreement to charge usurious interest, and the burden is upon the one who pleads usury to overcome this presumption by positive proof. “The wrong act of usury will never be imputed to the parties when the opposite conclusion can be reasonably and fairly reached.” Briggs v. Steele, 91 Ark. 458.
The testimony of T. T. Thompson tended to show that he was present and heard the agreement between his brother and the appellant, and that his brother in effect told appellant that, his-firm was paying 8 per cent, for money borrowed, and that they could not let appellant have the money for the same amount that they had to pay, but would have to charge him 10 per cent, on account of the trouble in keeping the books and for their time and stationery; that the books showing the charge of 10 per cent, on the checks and cash items conformed to their agreement with appellant. This testimony likewise falls short of showing that the interest on the account was to be at a greater rate than ten per cent, per annum. There is nothing in the testimony of Thompson to show either that 'the money advanced or the account for the goods and merchandise were due and payable in less than one- year from the time the money and merchandise were obtained by appellant from the supply company. '
Counsel for appellant say in their brief: “Nowhere does T. T. Thompson contend that the account was not due at the end of the year.” But that is a matter about which T. T. Thompson'had a right to remain silent. It was not incumbent upon him to contend or show that the account was not due at the end of the year, but the burden was upon the appellant to show that it was due at that time or at such time as would make the account usurious.
Counsel for appellant rely upon the ease of Hall Bros. v. Johnson, 111 Ark. 593. But in that case notes were given to cover future advances bearing ten per cent, interest from the date of the note, regardless of the date when the advances were made. Appellant in that ease sued upon an account, and it is stated in the opinion: “It appears from the face of the account, as well as from H. G. Hall’s own admission, that interest was charged at a higher rate than ten per cent, per annum.” And in the statement of facts it is said: “It appears that appellants charged straight ten per cent, upon all amounts advanced during- the year without reference to the time when the advances were made, and did not charge ten per cent, per annum.”
No such proof was made in the instant ease. Here there were no recitals in the mortgage as to any rate of interest to be charged, or fixing any time for the maturity of the debt secured. The account does not show on its face when it was due, and certainly does not contain any statement showing that interest was to be charged at a greater rate than ten per cent, per annum.
The chancellor construed the mortgage to secure an indebtedness not to exceed the sum of $2,000.00, even though the debt at the time the indebtedness ■ became due and at the time the mortgagee sought to foreclose the mortgage might be for a much larger amount. It is reasonably certain from the testimony that the mortgage was given to secure the indebtedness of the appellant to the supply company that then existed, and also was intended to cover any future indebtedness as evidenced by appellant’s running account with the company to the extent at least of $2,000.00.
(7) In Curtis & Lane v. Flinn, 46 Ark. 70, 72, Judge Cockrill, speaking for the court, said: “It is usual for the mortgage to set forth the amount of the debt to be secured and to recite that it is witnessed by a note, a stated account or other evidence of debt, but the neglect to do either or both does not necessarily invalidate the mortgage security. If the mortgage contains a general description, sufficient to embrace the liability intended to be secured and to put a person examining the records upon inquiry, and to direct him to the proper source for more minute and particular information of the amount of the incumbrance, it is all that fair dealing and the authorities demand.” See Hoye v. Burford, 68 Ark. 256; Cazort & McGehee Co. v. Dunbar, 91 Ark. 400; Richeson v. National Bank of Mena, 96 Ark. 594, 604; Briggs v. Steele, supra.
(8) There was sufficient ambiguity in the mortgage to justify the introduction of oral testimony to ascertain the intention of the parties to it. When this testimony is considered, it is clear that the intention of the parties was to secure an indebtedness evidenced by a running account. The construction which the court gave the mortgage was more favorable to appellant than he was entitled to, but the appellees have not appealed. The items for liquor and the items of the account furnished to appellant’s tenants which the court eliminated amount to the total sum of $349.65. This amount deducted from the revised account, which the court found to be correct, except as to this sum, would leave more than the sum of $2,000.00 still due the Supply Company, and secured by its mortgage. On account of the loose and imperfect system of bookkeeping on the part of the Laconia Supply Company, as revealed by the testimony, we entertain some doubt as to the correctness of the revised account, but cannot say that the finding of the chancellor to the effect that this account is correct (except in the particulars designated by him) is clearly against a preponderance of the testimony.
The finding and decree of the chancellor as to the amount and lien for taxes is correct.
Upon the whole record we find no reversible error. The decree is therefore affirmed.
Hart and Smith, J. J., dissenting.