Smith v. . Bryant

*215 Connor, J. In view of the'stipulations of the parties at the trial of this action, as recited in the judgment, there was no error in the holding of the trial court that the plaintiffs are not entitled to injunctive relief on the allegation in their complaint that the note secured by the deed of trust executed by them was tainted with usury. Even if this allegation, which was denied in the answer, had been sustained at the trial, the plaintiffs would not have been entitled to such relief, without an offer in their complaint or at the trial to pay the amount received by them for their note, with interest at the legal rate. All the evidence at the trial shows that the plaintiffs received from the first holder of the note the full sum of $2,500. There was no evidence tending to show that any holder of the note has charged or received interest on the same at a rate in excess of six per cent per annum. For that reason the plaintiffs are not entitled to the forfeiture of all interest on the note, in accordance with the provisions of the statute. O. S., 2306. The principle is well settled by numerous decisions of this Court that where a debtor seeks the aid of a court of equity on the ground that his debt is tainted with usury, he may have the usurious element, if any, eliminated from his debt only upon his paying the principal of his debt, with interest at the legal rate. In such case he is not entitled to the benefit of the statutory penalties for usury. Whether this principle is just and in accord with a sound public policy must be determined by the General Assembly, in the exercise of its legislative power, and not by the courts of the State. This Court must declare and apply the law as it has been written. See Kenny v. Hotel Co., 208 N. C., 295, 180 S. E., 697; Thomason v. Swenson, 207 N. C., 519, 177 S. E., 647; N. C. Mortgage Corp. v. Wilson, 205 N. C., 493, 171 S. E., 783; Jonas v. Mortgage Co., 205 N. C., 89, 170 S. E., 127; Edwards v. Spence, 197 N. C., 495, 149 S. E., 686; Miller v. Dunn, 188 N. C., 397, 124 S. E., 746; Waters v. Garris, 188 N. C., 305, 124 S. E., 334; Corey v. Hooker, 171 N. C., 229, 88 S. E., 236; Owens v. Wright, 161 N. C., 127, 76 S. E., 735. There is no error in the judgment denying the plaintiffs equitable relief on their allegation that the debt secured by their deed of trust was tainted with usury. It is, however, alleged in the complaint that the amount bid at the sale of the land described in the deed of trust by the defendant Eealty Purchase Corporation, to wit: The sum of $2,000, is grossly inadequate, and that the conveyance of the said land for said sum will be inequitable, and will result in irreparable damage to the plaintiff. This allegation is denied in the answer. The issue thus raised between the plaintiffs and the defendants has not been determined by the court. The plaintiffs are entitled, by reason of the provisions of chapter 275, Public Laws of North Carolina, 1933, to have this issue determined. There is error in the judgment dismissing the action. For this reason the action is re *216 manded to the Superior Court of Union County that the judge may hear the evidence and determine the issue. At this hearing neither the plaintiffs nor the defendants will be entitled as a matter of law to have the issue submitted to a jury. If the court shall find that the facts with respect to the amount of the bid for the land are as alleged in the complaint the plaintiffs will be entitled to judgment enjoining the consummation of the sale for said' amount. In that case a resale may be made by the trustee in the deed of trust, under the power of sale, or under the orders of the court. See Woltz v. Deposit Co., 206 N. C., 239, 173 S. E., 587. If the court shall find that the amount bid at the sale heretofore made by the trustee is the fair value of the land and is an adequate price for the same, the plaintiffs will not be entitled to a resale. In that case, the action should be dismissed. See Barringer v. Trust Co., 207 N. C., 505, 177 S. E., 795. Error.