Mac Mahon v. Parker

Terrell, C. J. — This appeal is from a final decree holding a note and mortgage to be usurious and cancelling both of record as authorized by Section 6942, Compiled General Laws of 1927. It is contended (1) that the judgment should be reversed because the evidence does not prove the charge of usury as alleged, (2) that even if usury was proven, the money loaned was used to discharge a mortgage on the borrower’s lands held by a third person and being so, appellant should be subrogated to the rights of appellees in the mortgage. (3) The defense of usury if ever available *773 to defendants, was barred by laches when the suit was brought. On the question of proof, it is sufficient to say that the evidence has been reviewed and while it is in conflict on some material points, there is ample affirmative evidence if believed to support the decree of the chancellor. No reason for reversal is shown on this point. Section 6942, Compiled General Laws of 1927, is shown to have been violated and there are no mitigating circumstances. On the question .of subrogation, we fail to find any facts whatever that would warrant the invocation of that doctrine in this case. In answer to the defense of laches, it is quite true that appellant waited several years to bring his suit to foreclose the mortgage but in the meantime, there was no agreement of extension and no other transaction or indulgence took place that would remove or tend to remove the taint of usury. The judgment below is therefore affirmed. Affirmed. Buford and Thomas, J. J., concur. Brown, J., concurs in opinion and judgment. Justices Whitfield and Chapman not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.