#### J. E. ERVIN v. FIRST NATIONAL BANK OF LENOIR.

(Filed 4 December, 1912.)

1. Usury — Renewal Notes — Interest Charged — Principal—Credits— Interpretation of Statutes.

Tbe character of an instrument tainted with usury is not changed by renewals; and interest on the original note being forfeited by the illegal rate charged, any payment of money as interest made on the renewals should be credited upon the principal sum of the debt, which, under such circumstances, amounts to the loan of money without interest.

2. Usury — interest Charged — Forfeiture—Interpretation of Statutes.

The full amount of the interest charged on an usurious instrument is forfeited under our statute, and not the difference between the usurious and the legal rate.

3. Usury — Interest Charged — Forfeiture — Pleadings—Appeal and Error.

It appearing from the referee’s report, in this case, that a certain item, of interest arising under- an usurious contract was charged at the legal rate, and that no claim was made otherwise in the pleadings, it was error for the trial judge to overrule the referee, and to deduct double the amount of this item from the principal sum of the debt.

Appeal by plaintiff from Lyon, J., at August Term, 1912, of Caldwell.

Tbis is an action against tbe First National Bank of Lenoir, to recover usury alleged to bave been paid, and to ascertain tbe amount due fronrtbe plaintiff to tbe defendant, or from tbe defendant to' tbe plaintiff.

*43Tbe defendant denied that it had charged or received usury, and démanded judgment for the balance alleged to he due it.

The allegatiop in the complaint as to payments made hy the plaintiff is as follows:

“5. That from the time that plaintiff began to pay 8 per cent interest in 1907, or from 1 January, 1908, to 11 November, 1910, he paid the defendant the sum of $684, the same being usurious, unlawful, and forbidden by law, and plaintiff avers that he is entitled to recover the said sum of $684 so paid to the defendant at the rate of 8 per cent, and in addition thereto the sum of $1,368, being double the interest charged plaintiff, which plaintiff avers he is entitled to recover by way of penalty, and the additional sum of $1,005 which plaintiff paid defendant, subject to the deduction of $2,985 which plaintiff borrowed of defendant, which would leave due plaintiff $72.”

By consent, all issues raised were referred under The Code, and the following is the report of the referee: »

“1st. That commencing in the year 1907 and continuing up to about 6 September, 1911, plaintiff was doing his banking business with defendant, making deposits with and procuring loans from defendant bank as the exigencies of his business permitted and required. -

“2d. That on 1 January, 19P8, plaintiff owed the defendant the sum of $2,985 for money loaned, which loan was evidenced by the note of plaintiff for said sum. That the defendant has carried this loan since said date, but required the plaintiff to renew the evidence of said indebtedness from time to time by executing new note therefor and paying the interest thereon at the rate of 8 per- cent, the interest being paid in advance at the time the plaintiff delivered his note to defendant renewing said indebtedness.

“3d. The summons in this action was issued and served on 2 November, 1911.

“4th. That on the dates given below, plaintiff renewed his indebtedness of $2,985 to defendant and paid interest thereon in advance at a rate greater than 6 per cent, to wit, 8 per cent, on *44three of said payments, and a little more than 7 per cent on the other payment. The following are the dates and amounts of said payments, to wit:

November 18, 1909.$ 53.61

February 22, 1910 . 59.70

May 28, 1910. 59.70

August 29, 1910 . 59.70

Total.$232.71

“This sum was knowingly charged and received by the defendant for the loan of $2,985 from 11 November, 1909, to 11 November, 1910.

“5th. That on 29 August, 1910, plaintiff executed and delivered to defendant a note, bearing date of 11 August, 1910, and due 11 November, 1910, renewing his said indebtedness of $2,985, and on said 29 August, 1910, the defendant knowingly charged and received interest at the rate of 8 per cent on said debt to the maturity of said note, which sum is charged above. That said note drew 6 per cent after maturity. That plaintiff failed to pay or renew said note at maturity,’ and said note is still held by the defendant. That on 6 September, 1911, plaintiff caused to be paid and defendant knowingly charged and received the sum of $146.75 and credited same as interest on said note from 11 November, 1910, to 6 September, 1911. That this sum represents 6 per cent interest on said note from said time.

“6th. That the amount knowingly charged and received by defendant on said loan of $2,985 from 11 November, 1909, to 6 September, 1911, as interest, is the sum of the items in my finding of facts Nos. 4 and 5, above, to wit, $232.71 and $146.75, making a total amount of interest knowingly charged and received on said debt for one year nine months and twenty-five days of $379.46, which is $53.60 more than the legal rate of 6 per cent.

“7th. That from 2 November, 1908, to 1 November, 1909, defendant knowingly charged and received interest on said loan at the rate of 8 per cent, making a total amount of $238.80 for said time.

*45“8th. That on 6 September, 1911, plaintiff caused to be paid and defendant received and credited on the principal of said note the sum of $858.25.

“Conclusions of law:

“1st. That the burden is on the plaintiff to establish his contentions by the greater weight of evidence, and to show that his cause of action, if any, is not barred by the statute of limitations, and I have applied this rule of law in finding facts.

“2d. From facts found in the second, third, and seventh finding of facts, above, I conclude as a matter of law that defendant knowingly charged and received from plaintiff usury to the amount of $238.80 up to 1 November, 1909, but that the statute of limitations, as contained in subsection 2 of section 396 of the Eevisal of 1905, applies to this item of charge, and that plaintiff’s cause of action, therefore, is barred and plaintiff is not entitled to recover.

“3d. From the facts found in the third and fourth finding of fact, I conclude as a matter of law that defendant knowingly charged and received from the plaintiff usury to the amount of $232.71, and that plaintiff is entitled to recover in this action double said sum of $232.71, to wit, the sum of $465.42.

“4th. From the facts found in the third, fifth, and sixth findings of fact, above, I conclude as a matter of law that the defendant knowingly charged and received from plaintiff usury to the amount of $146.75, and that plaintiff is entitled to recover in this action double said usurious charge of $146.75, to wit, the sum of $293.50.

“5th. From facts found in the third, fourth, and fifth findings of fact, above, I conclude as a matter of law that all unpaid interest on said note is forfeited and no interest can be charged or collected thereon.

“6th. From facts found in the finding of fact, above, I conclude that plaintiff is entitled to a credit of $858.25 on this indebtedness to defendant as of 6 September, 1911.

“7th. That upon the facts found in fourth, fifth, and sixth findings of fact, plaintiff is entitled to a credit of $785.92, being the penalty adjudged against the defendant in my third and fourth conclusions of law above.

*46“8th. From the facts found in the fifth finding of fact above, I conclude as a matter of law that the defendant is entitled to judgment against the plaintiff on the note alleged in its further defense for the sum of $1,367.83, this being the balance due after allowing all credits and. penalties, with interest after final judgment is entered, and for costs of this action, to be taxed by the clerk, except allowance to referee and stenographer, which should be paid one-half by plaintiff and one-half by the defendant.”

The defendant filed several exceptions to the report, but all depend on the first, which is:

“1st. The referee erred in his sixth finding of fact in adding the sum of $146.75 to the sum of $232.71, for that the said payment of $146.75 was the payment of the legal interest due on the note referred to and as shown in the said referee’s fifth finding of fact. That said payment of $146.75 is a separate transaction, represents the amount of the legal interest on said note, and is untainted with usury.”

The referee credited the note for $2,985 with $758.92 (this being twice the items paid of $232.71 and $146:75) and with the payment of $858.25, making a total of credits of $1,617.17, and recommended that judgment be entered in favor of the defendant for the difference, $1,367.83.

His Honor sustained the first exception, and eliminated the item of $146.75 from the credits, and thereby increased the amount found to be due by the referee, $293.50 (being twice $146.75), and making the total for which judgment was rendered $1,661.33, and the plaintiff excepted and appealed.

W. B. Cowncill and Lawrence Wakefield for plaintiff.

Mark Squires for defendant.

Allen, J.

No question is raised by this appeal except as to the effect of the payment of $146.75, and as to that there is no allegation of usury, nor is there any demand in the complaint for the recovery of double this amount, the penalty prescribed by statute for receiving usurious interest.

In the complaint, the plaintiff charges that, from 1 January, 1908, to 11 November, 1910, he paid $684, “the same being usu*47rious, unlawful, and forbidden by law,” and lie demands tbat be be credited witb double tbat amount, and tbis is tbe only allegation of usurious payments.

Tbe item of $146.75 cannot be a part of tbe sum of $684, because it was paid on 6 September, 1911.

Again, be alleges tbat in addition to tbe credit of twice tbe sum of $684, usurious interest, be is entitled to be credited witb $1,005, “wbicb plaintiff paid defendant,” without any allegation tbat illegal interest was included in tbe payment, and tbis amount is made up of $858.25 and $146.75, both paid on 6 September, 1911.

It follows, therefore, tbat as tbe plaintiff has not alleged tbat tbe payment of $146.75 was usurious, and has not brought tbis action to recover the penalty for receiving tbe same, be is not entitled to be credited witb double tbat amount.

We are, however, of tbe opinion tbat be is entitled to have the payment credited on tbe principal sum due by him, as be demands in bis complaint.

Commenting on tbe section of tbe National Banking Act dealing witb usury, wbicb in tbis respect is almost identical witb our statute, tbe Supreme Court of tbe United States says, in Brown v. Bank, 169 U. S., 416: “Tbe forfeiture declared by tbe statute is not waived or avoided by giving a separate note for tbe interest, or by giving a renewal note in wbicb is included tbe usurious interest. No matter bow many renewals may have been made, if tbe bank has charged a greater rate of interest than tbe law allows, it must, if tbe forfeiture clause of tbe statute be relied on, and tbe matter is thus brought to tbe attention of tbe court; lose tbe entire interest wbicb tbe note carries or wbicb has been agreed to be paid. By no other construction of the statute can effect be given to tbe clause forfeiting tbe entire interest which tbe note, bill, or other evidence of debt carries, or wbicb was agreed’to be paid, but wbicb has not been actually paid.”

The same Court says, in Haseltine v. Bank, 183 U. S., 130: “Two separate and distinct classes of eases are contemplated by tbis section: first, those wherein usurious interest has been *48taken, received, reserved, or charged, in which case there shall be ‘a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon’; second, in case usurious interest has been paid, the person paying it may recover back twice the amount of the interest 'thus paid from the association taking or receiving the same.’ While the first class refers to interest taken and received, as well as that reserved or charged, the latter part of the clause apparently limits the forfeiture to such interest as the evidence of debt carries with it, or which has been agreed to be paid, in contradistinction to interest actually paid, which is covered by the second clause of the section”; and in Bank v. Watt, 184 U. S., 151: "The argument that the recovery should have been limited to twice the amount by which the usurious interest exeee'ded the legal rate is predicated on what is assumed to be the correct construction of the second sentence of section 5198 above quoted. The sentence relied on is as follows: 'In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same, provided such action is commenced within two years from the time the usurious transaction occurred.’ It is urged that the statute is penal in its character and must be strictly construed; therefore the sentence relied upon must be interpreted as relating solely to die usurious portion of the interest paid, and not to so much of the rate of interest as was lawful. Although it be conceded that the statute is penal in character, we do not consider, even under the strictest rule of construction, it is possible to give to it the meaning contended for without departing from its unambiguous letter, and thereby frustrating its obvious intent. The first sentence of the section provides that 'the taking, receiving, reserving, or charging a rate of interest greater than is allowed, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon.’ This, without the slightest *49ambiguity, provides for tbe forfeiture, not of tbe amount by wbicb tbe usurious bas exceeded tbe lawful rate, but of tbe entire interest.”

As tbe renewals, according to these authorities, do not change tbe nature of tbe transaction, and interest is forfeited when usury is charged, tbe debt became, after that time, simply a loan of money bearing no interest (Smith v. B. and L. Assn., 119 N. C., 255).

Applying these principles to tbe facts, tbe credit of $146.75 must be allowed to tbe plaintiff, as it is not denied that tbe amount was paid to tbe defendant and bas been credited on tbe note, and as tbe note bears no interest by reason of tbe usury.

It is, therefore, ordered that tbe judgment of tbe Superior Court be reformed by deducting from tbe amount recovered $146.75, and as thus modified, that it be affirmed.

Let tbe costs be divided.

Modified and affirmed.