concurring in part and dissenting in part:
I concur with the majority that the District Court should be affirmed in concluding the transaction here should be treated as a mortgage. I dissent from its reversal of the District Court on the question of whether the statutory usury penalty should be applied.
Without question the penalty required by the statute is very harsh. Very likely the original drafters would be astonished at the percentage of interest now commonly charged, let alone the penalty which the formula they enacted would require. Very likely the trial judge did not impose this penalty lightly or without awareness of its severity. But the statute has remained unchanged through the sittings of many legislatures. Moreover, as statutes go, it is singularly clear. It is true that it now works an unpleasant result, as do many laws, but that, in itself, is not a ground invoking the deus ex machina of equity.
Under the findings of the District Court, for which there is certainly substantial evidence, the Bonners wished to collect the interest charged, even knowing that it was usurious. Had they relinquished any claim to the unlawful interest being told of the attorney’s record, this might be a case for excusing them from the usury penalty. But they did not, and the finding of fact made by the District Court properly invoked section 31-1-103, MCA.
*515MR. CHIEF JUSTICE HASWELL and JUSTICE WEBER concur.