On Appellees’ Motion for Rehearing.
We have withheld action on the above motion until the Supreme Court decided the case of Temple Trust Company v. Haney, 107 S.W.(2d) 368 (opinion of this court in 103 S.W.(2d) 1035), in which writ of error was granted. That court on June 30, 1937, affirmed our judgment in that case and adopted our opinion, which renders unnecessary any further discussion of the issues therein disposed of.
Upon consideration of said motion, we have concluded, however, that we were in error in awarding a judgment in favor of Ingram against appellee for the sum of $397, as payment to the appellee of that sum in excess of the principal of his debt; and that our judgment in that regard should be corrected.
It is now settled that a borrower who pays usury is entitled to have all such usurious payments credited upon his principal, and, where he brings himself within the provisions of article 5073, R.S.1925, is entitled to recover the penalties therein provided. But, where he voluntarily pays such interest and principal, he cannot thereafter recover, as overpayment of principal, the interest theretofore so voluntarily paid by him. This exact question was decided in Thompson v. Kansas City Life Ins. Co. (Tex.Civ.App.) 102 S.W.(2d) 285 (writ ref.). See, also, the cases therein cited.
In the Thompson Case the borrower repaid all of the principal and the interest prior to the filing of his suit to recover *310such usurious interest. In the instant case Ingram had repaid only $1,800 of the principal; but we see no reason why the same rule should not apply with equal force after the interest so paid has been applied to and has served to extinguish the balance of his unpaid principal. No question is made but that Ingram had voluntarily paid all interest up to the time he filed his suit. That interest he was entitled to have applied to a reduction of his principal still unpaid. But, when the remaining principal is thus discharged, the rule announced in the Thompson Case, supra, would, we think, become operative as to any such excess, and bar his recovery as overpayment of principal such excess interest theretofore voluntarily paid by him.
To this extent appellee’s motion is granted, and our former judgment in so far as it awards Ingram a recovery against ap-pellee of $397 is set aside. In all other respects, our former judgment is undisturbed; and appellee’s motion is in all other respects overruled.
Granted in part and in part overruled.