Opinion
No. 29499.
November 16, 1931. Suggestion of Error overruled April 18, 1932.
1. USURY. Transaction whereby debtor procured loan of twenty-four thousand one hundred dollars, giving notes for twenty-five thousand dollars and allowing lender one-half of eighteen hundred dollars realized by discounting thirty thousand dollar note, rendered loan usurious.
The contract as set forth in correspondence supplemented by telephone conversation clearly showed that the nine hundred dollars was not paid new lender by the holder of the thirty thousand dollar note, but was a part of the discount allowed by the latter to debtor, which debtor agreed to pass on as part of compensation for making loan. The only service claimed to have been rendered by the new lender is that he himself borrowed at some inconvenience part of the money with which to make loan. The debtor's offer contained no promise to pay the lender for trouble and inconvenience of obtaining money with which to make this loan.
2. JOINT ADVENTURES.
Joint adventurers are not liable to each other for repayment at all events for money advanced for use in joint adventure.
3. USURY.
Borrower's promise to pay for lender's inconvenience in obtaining money cannot be implied from lender's statement to borrower that lender would have to borrow money.
4. USURY.
That lender in good faith deducted certain sum from money loaned, at borrower's suggestion without intention of violating statute, held not to deprive loan of usurious character.
5. CONTRACTS.
Unlawful intent is presumed from intentionally doing something forbidden by statute, and ignorance of statute is no excuse.
6. USURY.
Taint of usury held not removed from original loan by fact that renewal notes were given and that interest, computed to due date of renewal notes, would be within legal limit (Code 1930, section 1946).
7. USURY.
Loan is usurious where more than eight per cent. interest is stipulated for, though interest actually paid is within legal rate (Code 1930, section 1946).
8. SET-OFF AND COUNTERCLAIM.
Insolvency alone is not sufficient equity to justify allowance of otherwise incompetent set-off.
9. SET-OFF AND COUNTERCLAIM.
Plaintiff could not set off against insolvent defendant, claim purchased by plaintiff for greatly reduced amount after filing of cross-bill.
10. USURY. Wife of borrower, whose property was deeded to secure renewal note and was thereafter sold and the proceeds thereof applied to payment of usurious debt, could assert usury as basis for recovery of part of proceeds of foreclosure after applying interest payments as principal ( Code 1930, section 1946).
Suit was brought to recover deficiency remaining after foreclosure sale of property covered by deed of trust. The maker of the notes and his wife filed a cross-bill alleging that the notes originally given were usurious, with the result that interest payments thereon were applicable to the principal of the debt, and claimed that when the payment was so applied the debt due on the notes at the time of the foreclosure would be less than the amount the land sold for, and therefore sought recovery for the difference in favor of the wife as owner of the land.
11. USURY.
Defense of usury is always available to owner of equity of redemption in property given to secure payment of usurious debt.
APPEAL from chancery court of Sunflower county. HON. J.L. WILLIAMS, Chancellor.
Somerville Somerville, of Cleveland, McClellan Tubb, of West Point, and G.G. Lyell, of Jackson, for appellant.
Though the security given for a debt is tainted with usury it may be purged by the abandonment of the usurious contract and the execution of a new obligation for the amount of the actual debt free from the usury of the old and bearing only legal interest. If the lender will expunge the usury, and the borrower voluntarily assents to repay the sum loaned with lawful interest, it is an act of justice forbidden by no principle of public policy, which constitutes a good consideration for a new contract.
27 R.C.L. 251, sec. 55.
Although a contract be in its inception usurious, a subsequent agreement to free it from the illegal incident shall make it good.
DeWolf v. Johnson, 10 Wheaton 367, 6 L.Ed. 343; Kilbourn v. Bradley (Conn.), 3 Day 356, 3 Am. Dec. 273.
The parties to a usurious transaction may, doubtless, reform it, and by cancelling the usurious security, and giving a new obligation for the real sum which ought to be paid, excluding all usury, the party will be bound.
Vermeule v. Vermeule, 49 A. 608.
It is well settled that parties can cancel and destroy the old contract, purge the consideration of usury, and make it the basis of a new obligation, and thereby bind the borrower, in law and equity, to pay the money actually received, and a legal rate of interest therefor.
Sanford v. Kunz, 71 P. 612.
When a usurious obligation is settled and abandoned and a new security taken for the debt lawfully due, with lawful interest thereon, such new security rests upon a consideration purged of usury, and is valid. The fact that the lender by such settlement retains the usury already paid will not taint the new contract.
Rushing v. Citizens National Bank of Plainview, 162 S.W. 460; Spofford v. State Loan Company, 94 N.E. 287; Chadbourn v. Watts, 10 Mass. 121, 6 Am. Dec. 100; Smith v. Stoddard, 10 Mich. 148, 81 Am. Dec. 778; Early v. Mohon, 19 John, N.Y. 147, 10 Am. Dec. 204; Note Ann. Cas. 1918a, page 762.
Mrs. Cooke voluntarily assumed this debt on January 23, 1928, and she should not be permitted to go back on her contract because there is certainly no usury in the contract as made by her.
Usury statutes are quasi penal and will not be applied to contracts not clearly within their terms.
39 Cyc. 876; Smythe v. Allen, 6 So. 627, 67 Miss. 146.
Since usury laws are quasi penal the courts will not hold a contract to be in violation of the usury laws unless upon a fair and reasonable construction of all of its terms, in view of the dealings of the parties. It is manifest that the intent of the parties was to engage in a transaction that is forbidden by those laws. If two reasonable constructions are possible, by one of which the contract will be legal and valid, while by the other it will be usurious and invalid, the court will always adopt the former.
39 Cyc. 917; Riley v. Vanhouten, 4 Howard 428.
The mere fact that a note is given for an amount in excess of that actually due does not alone render the note usurious. There must be affirmative proof that the excess was included with usurious intent.
39 Cyc. 958.
The mere fact that a lender accepts a gift from the borrower, while a suspicious circumstance, will not render the loan usurious, if such a gift be really voluntary and not required by the lender. Nor will a collateral transaction between the borrower and the lender, whereby the lender may take profit, render the loan usurious, when such transaction was entered into in good faith, and without usurious intent. In fact, the general principle governing all the cases is that when the lender has rendered the borrower any bona fide service, or conferred upon him some real benefit, even though it be in connection with the loan, the borrower has promised to compensate the lender for such service or benefit, will not, in the absence of usurious intent, render the transaction usurious, and the burden rests upon him setting up usury to show that a commission or other things of value alleged to have been promised or received in addition to principal and legal interest rests upon a usurious consideration. The presumption is that such added benefit rests upon an independent and legal consideration.
39 Cyc. 971.
It is often difficult to discover the reasons and designs of contracting parties but whenever their contracts are susceptible of a legal interpretation by which they can be enforced, such interpretation must prevail.
Riley, Adm. v. Vanhouten, 4 Howard, 428.
In order to constitute the offense of usury, there must be an agreement between the lender and the borrower of money by which the latter knowingly gives or promises, and the former knowingly takes or reserves a higher rate of interest than the statute allows and with an intention to violate the statute. Our statute against usury is penal, since it inflicts a loss of the entire interest, legal as well as usurious, upon the lender. And it is not the less a penal law because it does not provide for the whole debt, or visit the offenders with fine and imprisonment.
Planters Bank v. Snodgrass (Miss.), 4 Howard 573.
The statute against usury is penal in its character and no one should be made to suffer its forfeitures until first clearly shown to have fallen under its condemnation.
Smythe v. Allen, 6 So. 627, 67 Miss. 146.
The statute protects and safeguards the borrower by penalizing sharply the lender in the usurious contract; but it was not meant to give to the borrower any unjust advantage of the lender. Its good purpose should not be perverted into a source of legal fraud by borrowers upon lenders.
Byrd v. Link Newcomb Mill Lumber Company, 79 So. 100, 118 Miss. 179.
Bouvier's Law Dictionary defines interest as "The compensation which is paid by the borrower of money to the lender for its use."
If the transaction was in fact a joint adventure upon such terms as to entitle the party who advanced the money to a share in such profits as might be made, it is prima facie not usurious although he stipulates for the repayment of the money, in any event, with legal interest for its use, in the business.
Crowson v. Cody, 96 So. 875; Ruck Derschall v. Seibel, 126 Va. 359, 101 S.E. 425; Goodrich v. Rogers, 101 Ill. 523; Orvis v. Curtis, 157 N.Y. 657, 68 Am. St. Rep. 810; 1 Colyer on Partnership 120; Washington Fire Insurance Company v. Maple Valley Lumber Company, 77 Wn. 553, 138 P. 553.
It frequently happens that the lender performs services for the borrower with respect to the loan for which he may claim compensation in addition to interest on the money lent without violating the usury statutes. Thus, it is generally held that where the lender it himself required to borrow or otherwise collect the money to be lent, he receives reasonable compensation for his services in raising the money, in addition to legal interest on the loan without rendering the transaction usurious.
Floyd v. Chandler, 114 So. 344, 148 Miss. 200; 29 Am. Eng. Ency. of Law, page 496.
Where a party is solicited to make a loan, and to procure the means of so doing must spend time and incur trouble and expense in collecting the money from others and does this at the request of the borrower and upon his agreement to pay for such services and expenses, the transaction is not usurious.
Washington Fire Insurance Company v. Maple Valley Lumber Company, 77 Wn. 553, 138 P. 553; Atlanta Company v. Gwyer Co., 48 Ga. 11.
Courts of equity will not permit borrower fraudulently to escape payment of his debt in whole or in part by purposely making usurious agreement for a loan. In such cases, equity will not enforce the illegal contract but will compel the tricky borrower to pay principal and legal interest.
39 Cyc. 1000; U.T. Hungerford Brass Company v. Bingham, 95 N.Y. Supp. 867.
Mrs. Cooke cannot recover in this case. If there is any recovery on account of usury, J.W. Cooke is the only person entitled to it. The defense is purely personal to the borrower.
29 Am. Eng. Ency. of Law 548; 39 Cyc. 999.
Where sum of money is paid as compensation for procuring loan and not as interest, then the loan is not usurious.
Floyd v. Candler, 148 Miss. 200, 114 So. 344.
Shands, Elmore Causey, of Cleveland, for appellee.
If a greater rate of interest than eight per centum shall be stipulated for or received in any case on a note or account or contract, the note or account or contract is usurious.
Section 1946, Code of 1930.
It is not necessary that there be an intent to violate the usury statute as such. The law presumes the necessary unlawful intent from the mere fact of intentionally doing what is forbidden by the statute.
39 Cyc. 919; Hebron Bank v. Gambill, 116 Miss. 343. 348; Washington Fire Ins. Co. v. Maple Valley Lumber Co., 138 P. 553, 556.
The character of a contract as usurious or not, is to be resolved by what the lender would have the right under the terms of the contract in any situation during the life of the contract to do.
Crofton v. Building Loan Association, 77 Miss. 166, 179.
The principal difference between a joint adventure and co-partnership is that while a co-partnership is ordinarily formed for the transaction of a general business of a particular kind, a joint adventure is usually, but not necessarily, limited to a single transaction; although the business of conducting it to a successful termination may continue for a number of years.
38 C.J. p. 842.
A joint adventure can exist only by the voluntary agreement of the parties to it. The joint ownership of property cannot create it, nor can it arise by mere operation of law. The contract may be expressed, or it may be implied from the circumstances and the conduct of the parties. But a contract there must be.
33 Corpus Juris, p. 847.
If money which a person loans to another to be used in a business enterprise is to be repaid by a borrower, whether the venture proves a success or a failure, the contract is ordinarily construed to be one of lending and borrowing and not of joint adventure. But if the person receiving the money assumes no obligation for its return, and it is subject to the risks of the business, the parties have usually been held to be joint adventurers notwithstanding, the contract provided that the money is to be returned with interest before the net profits are divided.
33 C.J. 842-3; Duvall v. Neal, 70 Miss. 288; Commercial Bank Trust Co. v. Joiner, 114 Miss. 749; Andrews v. Andrews, 51 A.L.R. 542, 212 N.W. 408.
It is well settled that a loan of money or property to be repaid under all conditions and to be compensated for by a share in earnings, income, or profits, in lieu of or in addition to interest, is usurious, if it clearly is contemplated that an amount exceeding legal interest is to be paid.
51 A.L.R. 552.
A loan in consideration of a share in profits, income, or earnings, in lieu or in addition to, interest, is not usurious, in the absence of certainty, that the arrangement would produce a return in excess of the legal rate of interest, though the principal is to be repaid in any event.
51 A.L.R. 554.
It is accepted as a general rule that an advancement made under an agreement to share in earnings, income or profits and to subject the principal sum advanced to the hazards of loss in a venture or partnership, though likely and intended to produce more than a legal rate of interest is not usury.
51 A.L.R. 555.
Where the note executed for the loan included an additional one hundred dollars put in the note because of an arrangement made between them to the effect that lender should have one-half the profits made by borrower in discounting the fourteen hundred dollar notes, is usurious.
Weaver v. Burnett, 81 N.W. 770.
In order to take off the charge of usury, the appellant must show that the overcharge was by agreement applied on some other bona fide account.
Floyd v. Candler, 148 Miss. 200, 205.
Where the services performed were performed for the appellants and were reasonably worth the amount which the appellants agreed to and did pay, then payments for the same did not render the loan usurious.
Atlanta Company v. Gwyer, 48 Ga. 11; Insurance Company v. Maple Valley Lumber Company, 138 P. 553; First National Bank v. Phares, 174 P. 519; Testera v. Richardson, 137 P. 998; Liskey v. Snyder, 49 S.E. 515, 528; Humphrey v. McCauley, 17 S.W. 713; Robinson v. Whittier, 191 P. 763; Brown v. Robinson, 120 N.E. 694, 698.
If a note be affected with usury in the origin, every renewal or change of security is equally affected.
Torrey v. Grant, 10 S. M. 89; Coulter v. Robertson, 14 S. M. 18; Bank v. Fraser, 63 Miss. 231; Armor v. Bank of London, 86 Miss. 658.
For usury to be eradicated, there must be "a new obligation for the amount of the actual debt free from the usury of the old and bearing only legal interest."
27 R.C.L. 251; De Wolf v. Johnson, 10 Wheaton 367; 3 Am. Dec. 273; 49 A. 608.
Even the failure of the appellant to collect according to the contract, would not have purged the transaction of usury because usury in the contract is determined by what the contract authorizes the lender according to its terms to do.
Crofton v. Building Loan Association, 71 Miss. 166.
The mere crediting or endorsing upon a usurious instrument the amount of the usury cannot free it from usury since the original obligation still exists. Nor will the mutual agreement that such a credit shall be regarded as purging the usury be operative.
Guinn v. Bank, 176 P. 898; 39 Cyc. 1003.
The way to purge the usurious contract of usury by a renewal is to cut out the usury and cut the amount owing down to "the sum actually loaned."
Teshner v. Roome, 212 P. 473.
Insolvency is not sufficient to justify the allowance of a set-off otherwise incompetent and particularly so when the party attempting to use said set-off purchased same, knowing of the insolvency.
Condon v. Shehan, 46 Miss. 710; Desearth v. Babers, 62 Miss. 428; Enter v. Quesse, 8 S.E. 796; Bettman Dunlap Co. v. Gertz, 116 So. 299.
The right of Mrs. Cooke, the owner of the equity of redemption, to have the judgment is conclusive.
Chaffe v. Wilson, 59 Miss. 42; Boyd v. Warmack, 62 Miss. 536; McCallister v. Jerman, 32 Miss. 142.
Even a judgment creditor has the right to show usury in an indebtedness secured by a first lien on the debtor's property, and to have the usury eradicated.
Spinks v. Jordan, 108 Miss. 133.
Argued orally by G.G. Lyell, for appellant, and by H.H. Elmore, for appellee.
On January 19, 1918, J.W. Cooke wrote the appellant a letter, the part thereof material hereto reading as follows: "I owe a note for thirty thousand dollars and can get a discount of six per cent to anticipate same, after this payment I will owe considerably more money on the property, but it is strung out in small annual payments and at a low rate of interest, and I expect to make the property meet the same. I have agreed to pay this thirty thousand dollars and make this one thousand eight hundred dollars, but in order to do so would have to `ride' my friends and business associates; therefore, have decided to make you the following proposition: If you will loan me twenty-five thousand dollars, I can pay the three thousand two hundred dollars and will divide the `rake off' of one thousand eight hundred dollars equally with you and you will collect the nine hundred dollars in cash, thus leaving you to pay out only twenty-four thousand one hundred dollars, I will make you three notes, one for ten thousand dollars due November 15th, one for ten thousand dollars due December 20th, and the other for five thousand dollars due January 1st, bearing six per cent interest (the same rate that I am paying on the thirty thousand dollar note and I want to get this paper in other hands) besides, I am saving nine hundred dollars on the transaction and making you the same amount."
On receipt of this letter, Chandler called Cooke over the telephone, and agreed to make the loan requested, to be secured by a deed of trust on land, including that here in controversy.
On January 23, 1918, Cooke again wrote Chandler as follows: "Referring to my letter of the 19th instant, and in compliance with your phone message, I have prepared the notes and mortgages as best I could. . . . If these papers are satisfactory you may place the amount twenty-four thousand one hundred dollars to my credit and I will send check for the twenty-eight thousand two hundred dollars that I am to pay, for am anxious to get my matters out of this party's hand, as do not like to have any paper peddled over the country and had rather divide the `rake off' with you than to `strain' my credit to raise the funds elsewhere — besides would have had to pay eight per cent unless had taken time to arrange a loan."
Three notes were inclosed in this letter, one for ten thousand dollars due November 15, 1918, one for ten thousand dollars due December 20, 1918, and one for five thousand dollars due January 1, 1919; each bearing interest at six per cent per annum from date.
Chandler deposited the twenty-four thousand one hundred dollars to Cooke's credit in a bank, and Cooke used it in paying the thirty thousand dollar note referred to in his first letter to Chandler.
The money represented by these three notes was never paid, the debt being kept alive by extensions and renewals, the renewal notes for some of the extension periods bearing interest at eight per cent, and for other extension periods bearing six per cent per annum from the dates thereof.
In 1922 Myrtle Cooke, wife of J.W. Cooke, purchased the land covered by the deed of trust securing these notes from Cooke.
The last notes of this series were signed and delivered by both of the Cookes on January 23, 1928, and included all or the greater part of the principal of the original notes, the interest only thereon being theretofore paid.
On September 16, 1929, this deed of trust was foreclosed, and the property purchased at the foreclosure sale by the appellant, for twenty-three thousand dollars, an amount insufficient to pay the notes secured by the deed of trust. Afterwards the appellant exhibited an original bill against the Cookes, the purpose of which was to recover from them the balance due him on their notes. They answered this bill, making their answer a cross-bill, alleging usury in the notes executed in 1918, resulting in the interest payments being applicable to the principal of the debt; and when this is so applied, the debt due on the notes at the time of the foreclosure would be less than the amount the land sold for thereat, for which the bill prayed for a judgment against the appellant in favor of Mrs. Cooke, the owner of the land.
The decree was in accordance with the prayer of this cross-bill.
The money actually paid Cooke by the appellant on his three notes aggregating twenty-five thousand dollars, bearing six per cent interest from their date, being only twenty-four thousand one hundred dollars, that loan is admittedly prima facie usurious.
Counsel for the appellant say that this prima facie case is overcome by evidence which discloses that the nine hundred dollars deducted by Chandler from the face of the note was no part of the compensation received by the appellant or the use of the money loaned.
In support of this they say the nine hundred dollars was
(a) In effect a bonus paid the appellant by a third person for making the loan; or
(b) Was profit from a joint adventure entered into by Cooke and the appellant; or
(c) Was compensation to the appellant for services rendered Cooke in connection with the making of the loan.
The nine hundred dollars could not have constituted at the same time a bonus, profit on a joint adventure, and compensation for services. It could have constituted but one of the three, which counsel did not say. But that aside, and coming to the merits of each of these contentions, it is clear from the contract set forth in the letter, even if it be supplemented by the telephone conversation, that the nine hundred dollars was not paid to Chandler, or to Cooke for him by the holder of the thirty thousand dollars note, but was a part of the discount thereon allowed by the holder to Cooke, which he had agreed to pass on to Chandler as part of his compensation for making the loan.
The transaction shows none of the ear-marks of a joint adventure, one distinctive feature of which is that neither or none of the joint adventurers are liable to the other, or others, for the repayment, at all events, of the money advanced by one or more of them for use in the joint adventure. If such liability is assumed, the transaction ordinarily is one of lending and borrowing, and not a joint adventure. 33 C.J. 842; Duval v. Neal, 70 Miss. 288, 12 So. 145; Commercial Bank Trust Co. v. Joiner, 114 Miss. 749, 75 So. 599.
The only service the appellant claims to have rendered Cooke in connection with the loan is that he borrowed, at some inconvenience to himself, part of the money with which to make it. Cooke's written offer to the appellant contains no promise to pay Chandler for any trouble and inconvenience he might be put to in obtaining the money with which to make the loan, and a promise so to do cannot be implied from the fact that thereafter, in the telephone conversation, the appellant told Cooke it would be necessary for him to borrow the money.
But counsel for the appellant say he deducted the nine hundred dollars from the money loaned by him to Cooke in good faith, at Cooke's suggestion, without any intention of violating the statute, and therefore the loan should not be held to be usurious. In Planters' Bank v. Snodgrass, 4 How. 573, it was said: "In order to constitute the offense of usury, there must be an agreement between the lender and the borrower of money, by which the latter knowingly gives or promises, and the former knowingly takes or reserves, a higher rate of interest than the statute allows, and with an intention to violate the statute." This does not mean that the parties must know of the statute and intend to violate it, for ignorance of or temporarily overlooking a statute will not excuse the doing of what the statute prohibits. Hebron Bank v. Grambrell, 116 Miss. 343, 77 So. 148. It simply means that the parties must intentionally do the thing which the statute prohibits. Smythe v. Allen, 67 Miss. 146, 6 So. 627. "The law presumes the necessary unlawful intent from the mere fact of intentionally doing what is forbidden by the statute. It is not necessary that the parties shall know that in so doing they are violating the law. Innocent ignorance is just as fatal to their contract as conscious wrongdoing." 39 Cyc. 920; Carter v. Holloway (Miss.), 28 So. 941.
Counsel for the appellant say that in event the original loan should be held to be usurious the renewals thereof have operated to purge it of usury. None of the renewal notes were for the amount of the actual debt then due after deducting from the original debt the amount of all interest paid thereon. That which counsel say purges the loan of usury is this: (1) Had the due date of the original notes been that which was afterwards made the due date of the first renewal notes, the loan would not have been tainted with usury, the nine hundred dollars deducted therefrom being insufficient in amount so to do; (2) that it appears from the conduct of the parties that they did not contemplate the payment of the original notes when due; and (3) that the execution of new notes in renewal of the original notes made the loan in legal effect, in so far as the payment of interest is concerned, the same as if the due date of the original notes had been that of the renewal notes; "that the contract is just as good when made at the end of the period as when made at the beginning of the period."
Section 1946, Code of 1930, expressly provides that, "if a greater rate of interest than eight per centum shall be stipulated for or received in any case, all interest shall be forfeited, and may be recovered back, whether the contract be executed or executory." It will be observed that the words "stipulated for" and "received" are not here separated by the conjunctive "and," but by the alternative "or," from which it necessarily follows that where more than eight per centum interest is stipulated for, the loan is thereby rendered usurious, and all interest paid thereon may be recovered by the borrower, although the interest actually paid is within the legal rate. Crofton v. B. L. Ass'n, 77 Miss. 166, 26 So. 362.
After the filing of the cross-bill, the appellant purchased a note executed to another by the Cookes for the sum of fifty thousand dollars, on which there remained unpaid something over twenty-five thousand dollars, paying therefor the sum of two hundred ninety-two dollars. When this note was purchased, the Cookes were then, and are now, insolvent. The appellant sought, but was not permitted, to use this note as an offset against the amount demanded from him by the appellee. His counsel admit that as a general rule a claim against a plaintiff or complainant cannot be used by the defendant as a set-off in an action at law or suit in equity commenced before the defendant purchased the claim, but they say that in equity the insolvency of the complainant is ground for an exception to this rule.
While there is authority to the contrary, this court has aligned itself with those courts which hold that insolvency alone is not a sufficient equity to justify the allowance of an otherwise incompetent set-off, but that there must exist circumstances in addition to insolvency which render it inequitable not to allow the set-off. Condon v. Shehan, 46 Miss. 710; Desearn v. Babers, 62 Miss. 421; 34 Cyc. 640. No such circumstances exist here. The appellant purchased the note for a mere song, which of itself charged him with knowledge that it was not collectible by ordinary legal processes, and it is clear from the evidence that his purpose in so doing was solely to use it as a set-off against the appellee's demand against him. In this respect the case is strikingly similar to the Condon case. See, also, Posey v. Maddox, 65 Miss. 193, 3 So. 460; Field v. Coleman, 72 Miss. 545, 17 So. 378; McIntyre v. Forbes, 100 Miss. 517, 56 So. 457; Sterling Products v. Watkins, 131 Miss. 145, 95 So. 313; and Bettman-Dunlap Co. v. Gertz, 149 Miss. 892, 116 So. 299.
This brings us to the contention of counsel for the appellant that in no event should a judgment have been rendered for Mrs. Cooke. In support of this contention they say that the borrower alone can complain of usury, and that Mrs. Cooke was not a party to the original notes and made no payments on the loan other than "the amount received from the foreclosure of the trust deed." Leaving out of view the fact that Mrs. Cooke signed the last of the renewal notes, the usury in the original notes is available to her for the reason that the renewal notes were secured by a deed of trust on her property, under which the property was sold and the proceeds applied to the payment of the usurious debt, without which usury less of the proceeds of the property would have been required for the payment of the debt. The defense of usury is always available to the owner of the equity of redemption in property on which there is a lien securing the payment of the usurious debt. Boyd v. Warmack, 62 Miss. 536; Chaffe v. Wilson, 59 Miss. 42; McAlister v. Jerman, 32 Miss. 142. See, also, Spinks v. Jordan, 108 Miss. 133, 66 So. 405, L.R.A. 1915C, 634.
The other assignments of error are not of sufficient merit to require a specific response thereto. Affirmed.