The only question presented to us for consideration is whether or not the Chancellor erred in rendering a decree for the sum of $7250.00, the actual amount of the indebtedness with interest from the date in February when the last interest payment was made to date of decree and thereby not requiring a forfeiture of all interest because of the taint of usury in the contract.
The record shows that before any defense was interposed by the defendants in the court below the complainant amended his bill and by amendment alleged that the actual *Page 454 amount of the loan was only $7250.00 and alleged that the sum of $150.00, $100.00 and $50.00 above mentioned were paid for forbearance and extension and specifically renounced any right to claim the $250.00 included in the note in excess of the loan. By this amendment to the original bill of complaint before the date upon which the defendants were required to plead, the complainant specifically disclaimed any right to charge the said sum of $250.00 against the defendants.
The complainant was a co-payee of the original note and was assignee of the McDaniel interest in the note after maturity. The note was in violation of Sections 4851 R. G. S. 6938 C. G. L., as construed by this Court in the case of Wilson et ux. v. Conner, filed June 14, 1932, and reported 142 So.2d 606. The amount of the interest paid in accordance with the usurious contract appears to have been $600.00 in addition to the $250.00 withheld in 1927 and $750.00 in 1928. There was no unlawful usury charge or demand after February 5th, 1928. Therefore, the Chancellor should have deducted from the principal $600.00 plus $750.00, making a total of $1350.00, which being deducted from $7250.00 would leave the amount of principal due $5700.00, upon which interest should have been calculated from February 5th, 1930.
I think to this extent the decree of the Chancellor is erroneous and, therefore, should be reversed with directions that a decree be entered not inconsistent with the views here expressed and otherwise conforming to the original final decree. *Page 455