McNeill v. . Suggs

Adams, J. Taking, receiving, reserving, or charging a greater rate of interest than six per cent, either before or after the interest may accrue, when knowingly done, works a forfeiture of the whole interest; and if a person pays an unlawful rate of .interest, he or his legal representative may, by suit in a court of competent jurisdiction, recover twice the amount of interest paid. C. S., 2306; Ragan v. Stephens, 178 N. C., 101. The statute (C. S., 2306), formerly contained a proviso that an action to enforce the penalty should be commenced within two years from the time the usurious-transaction occurred (The Code, 3836) ; and it was held that a defendant was entitled to the protection of this clause, although it was not pleaded. Roberts v. Ins. Co., 118 N. C., 429, 435; Tayloe v. Parker, 137 N. C., 418. But the clause was subsequently taken out of section 3836 of The Code and transferred to the chapter *480 in Civil Procedure prescribing the limitation of actions. Revisal, sec. 396; C. S., sec. 442. It was thereby made a statute of limitations. This is pointed out in Burnett v. R. R., 163 N. C., 186, 193, the reversal by the Supreme Court of the United States not affecting the decision of this question. R. R. v. Burnett, 239 U. S., 199, 60 Law Ed., 226. The objection that the action was not brought within the time limited was specifically pleaded. O. S., 405. This plea imposed upon the plaintiff the burden of showing that his suit was brought within two years from the time his cause of action- accrued. Tillery v. Lumber Co., 172 N. C., 296. In the amendment to his amended complaint, which was filed on 23 August, 1929, he alleged that on 20 May, 1922, he executed and delivered to the defendant his note in the sum of $3,000, together with a deed of trust as security. It is contended by the defendant that the last transactions in reference to the note for $3,000 took place on 17 November, 1924; that the amendment constitutes a new cause of action; and that, as more than two years intervened between the last communication of the parties and the filing of the last amendment, the plaintiff's cause is barred. The plaintiff says that the amendment is merely an amplification of allegations in his previous pleadings; that the summons was issued on 21 February, 1925, and that his action is not barred. It would be a doubtful undertaking if we should try to determine these contentions upon the face of the record. Of course we have no access to the evidence, and in the plaintiff’s pleadings the references to the note of $3,000 are not sufficiently definite to enable us to hold as a conclusion of law that the loan of $3,000 referred to in the thirteenth and fourteenth paragraphs of the amended complaint is embraced in the note set out in the amendment to the amended complaint. The referee’s report is indefinite as to the statute of limitations. lit contains a finding of fact that all causes are barred except the one involving the note of $3,000. If the finding raises an inference that the latter is not barred it is defective, because no dates are fixed upon which the law can be declared. The defendant is entitled to a specific finding of the facts upon h-is contentions, so that it may be decided whether upon the facts as found the plaintiff’s action is barred. The cause is therefore remanded for additional facts, which we presume may be ascertained by the court without the necessity of another reference. Error and remanded.