The deed executed by the husband and wife charging her land, is full and explicit. It specifies and describes the property to be charged, itemizes the debts for which said lands were charged, and sets out that the charge was executed with the written consent of the husband (though that sufficiently appears by his joining in the execution of the deed. Jones v. Craig miles, 114 N. C., 613; Bates v. Sultan; 117 N. C., 94). The deed contains a covenant that the charge shall be binding for all renewals of the debts specified. This would be so without any agreement, unless a different intent appeared. Hyman v. Devereux, 63 N. C., 624; Bank v. Manufacturing Company, 96 N. C., 298.
The wife’s privy examination was duly taken. There is a most rigorous compliance with the specific charge *575required under Flaum v. Wallace, 103 N. C., 296, and Farthing v. Shields, 106 N. C., 289, for it is needless to say that the statute {Code, Section 1826), does not require any charge, but merely the written consent of the husband. Those decisions do not require that the charge shall be made by mortgage (Bate v. Sultan, supra), and it would be judicial legislation and, hence, retroactive, to hold that the carefully drawn charge in this case is insufficient. A mortgage would doubtless be essential as to third parties, but there is nothing that requires that the charge shall be made in that mode as between the parties themselves.
The feme defendant sets up that the privy examination is invalid because she was imposed upon by her husband’s representations, was ignorant of the legal purport of the charge, and the officer who took the examination did not explain her rights to her. To this it must be observed: (1) No statute requires that the charge shall be made with privy examination. This is not a conveyance of real estate as to which the statute {Code, Sections 1246(5), 1256, 2106), still requires privy examination of the wife, but merely the contract of the wife, as to which the simple requirement of The Code (Section 1826) is “with written consent of her husband.” (2) The allegation of ignorance, and being imposed upon by her husband, would not be sufficient even when a privy examination is required by statute, since she does not allege that the party to whom the instrument was made had knowledge of or participated in the alleged fraud or imposition. Riggan v. Sledge, 116 N. C., 87. (3) The Act of 1889, Chapter 389. provides that where a privy examination is duly certified, it shall not be held invalid because procured by fraud, duress or undue influence, unless the grantee had notice *576of or participated in the same. Nor was it material, even if privy examination had been required by statute, that it was taken by a notary public who was an officer (a clerk) in the plaintiff’s bank. He was not a party to the action, and is not shown to have been a stockholder of the bank or to have had any interest therein. It may be further noted that the notes specified in the charge were all signed, and likewise endorsed, by the feme defendant. She had the fullest knowledge.
The male defendant sets up in his answer specific allegations as to usury, and demands forfeiture of the interest, and, as a counter-claim, the recovery of double the interest paid by him. The Code, Section 3836, gives the action to recover double the interest, and it has been repeatedly held that this can be done by way of counterclaim to an action upon the note or bond. Smith v. B. & L. Association, 119 N. C., 257, 261; indeed, Chapter 69 of the Acts 1895 specially provides that this recovery may be had as a counter-claim in the action. The plaintiff not having replied to the counter-claim, the defendants would have been entitled to judgment thereon {Code, Section 249), but, as the case goes back, the Court in its discretion will doubtless permit the reply to be filed. Code, Section 274.
The plaintiff relied chiefly upon the ground that, being a National Bank, the defendant could not sue it in-a State court for the recovery of double the interest, and therefore, of course, could not set up that demand as a counter-claim in this action. But by the Act, approved July 12, 1882, Congress conferred the jurisdiction of such actions upon the State courts. Morgan v. Bank, 93 N. C., 352.
It was error to render judgment upon the pleadings, *577ignoring the defence of usury and counter-claim set up in the answer of H. B. Ireland.
Error.