#### CHEEK v. IRON BERT BUILDING AND LOAN ASSOCIATION.

(October 30, 1900.)

Usury — Action at Laiu — Suit in Equity — Interest.

In an action to recover usurious interest, under The Code, see. 3836,' paid by plaintiff to defendant, it is not necessary for plaintiff to account to the defendant for the legal rate of interest, it being an action at law, not a suit in equity.

Douglas, J., dissenting.

PetitioN to rehear.

Dismissed.

Reported in 126 N. C., 242.

Manning & Foushee, for petitioner.

Winston & Fuller, in opposition.

Eueches, J..

This case was here at the last term of the *122Court, and is reported in 126 N. C., 242, and is bere again on a petition to rebear. It is an action brought, under section 3836 of Tbe Code, for usurious money paid by tbe plaintiff and received by tbe defendant. When it was bere before, tbe principal matter discussed was tbe contract under wbicb tbe money was loaned; tbe plaintiff contending that it meant 6 per cent, and defendant contending that it meant 8 per cent interest. That tbe defendant bad charged tbe plaintiff, in giving him credit on tbe amounts paid by plaintiff, 8 per cent interest, was expressly admitted by defendant; and defendant filed a long itemized statement, commencing in April, 1893, and running to January, 1899, computing interest at 8 per cent, and crediting tbe plaintiff with tbe amounts paid by him, subject to such interest. We do not remember that it was seriously contended that defendant bad not received usurious interest from tbe plaintiff,if it should be held tbattbe contract was at 6 per cent. That was tbe ground upon wbicb tbe defendant appealed; tbe Court having held it to be 6 per cent, as tbe rest of the judgment was in defendant’s favor. But, be this as it may, we there held that, according to tbe defendant’s admission in its answer, it bad received usurious interest, and upon a review of tbe case Ave bold so now. But we understand tbe petition to rehear to be put upon a technical rule of practice, Avbicb tbe petitioner contends is sustained by this Court in tbe recent case of Churchill v. Turnage, 122 N. C., 426, and. wbicb tbe petitioner thinks tbe Court must have overlooked (though it was cited in defendant’s brief), as it was not discussed in the opinion of tbe Court. It would not be entirely just to tbe Court to conclude that, because a case cited in tbe argument was not discussed in tbe opinion of tbe Court, it bad been overlooked. To discuss every case cited would be to devolve upon tbe Court an endless task, without profit. But, as this case is called specially to our *123attention — in fact, as tbe petition to rebear seems to rest almost entirely upon it — -we bave again carefully examined it, and are of tbe opinion, after such examination, that Churchill v. Turnage does not support tbe claim of tbe petitioner. Tbe case of Churchill v. Turnage was brought upon alleged frauds committed upon tbe plaintiff, in taking two notes and two mortgages for tbe same debt, for not applying, payments made, and for charging usurious interest on certain claims tbe defendant held against tbe plaintiff, and for an account, and an injunction restraining tbe defendant from selling under bis mortgages until tbe matter could be determined. That would bave been a suit in equity under tbe former practice, and is an equitable action now; and it was said by tbe Court in that case that, as tbe plaintiff bad to go into a Court of Equity to get relief, he must do equity, and must account to tbe defendant for tbe legal rate of interest. But this ease is not that case, nor is it like that case, in our opinion. This case is purely an action at law given by tbe statute to recover of tbe defendant usurious interest paid by tbe plaintiff and received by tbe defendant, and charged by tbe defendant against tbe plaintiff at tbe rate of 8 per cent in giving tbe plaintiff credit for bis payments. It is claimed by some that such actions are inequitable, but, if they are, tbe Legislature is responsible, and not tbe Courts. Tbe decision of tbe Court in this case was reached by an examination of tbe facts of tbe case under tbe light of tbe recent case of Smith v. Association, 119 N. C., 249, and, finding tbe facts in this case almost identical with tbe facts in Smith v. Association, tbe law applicable in this case was tbe same as in that case. It is true that tbe plaintiff asked that tbe note and mortgage be surrendered and cancelled. But this was asked upon tbe ground that plaintiff alleged that be bad paid off and discharged said note, principal and interest, at 6 per *124cent. Tbis prayer was but an incident to tbe allegation of payment, and bad no bearing upon plaintiff’s action for usurious interest. In Smith v. Association, supra, tbe defendant set up a counter-claim, being a balance due bim on tbe note upon wbicb tbe money was paid, and tbis claim was allowed, and tbe defendant association bad a decree of foreclosure of tbe mortgage given to secure tbe claim. But tbe plaintiff was allowed to recover upon bis claim of usury. In tbe argument of tbe case it was stated by counsel of petitioner that tbe complaint demanded an account, and that it was so held in tbe opinion of tbe Court. But upon examination it will be found that tbis is not tbe case. Tbe complaint' makes no such demand, and there were no grounds to base an account upon, as all the facts with regard to tbe payment by tbe plaintiff and receipts by tbe defendant were admitted by the answer, and set out in its schedule, made a part of tbe answer. Neither did tbe Court style it an action for account and settlement. It is true that tbe reporter in bis statement of tbe case says: “Civil action for tbe purpose (1) of having a deed of trust executed by plaintiff upon real estate declared satisfied.” This, as it will be seen, was tbe work of tbe reporter, and not of tbe Court. But we admit that it was natural, and not improper, for tbe reporter to say tbis, from allegations contained in tbe complaint. But tbis does not affect tbe right of plaintiff to bring and maintain this action. And upon an examination of tbe facts and tbe opinion of tbe Court in Smith v. Association, and tbe facts and tbe opinion of tbe Court in tbis case, it will be seen that, if tbis case can not stand, Smith v. Association, 199 N. C., 249, should be overruled.

Tbe petition is dismissed.

Douglas, J., dissents.