Rushing v. Rhodes

[230] By the Court. Lumpkin, J. delivering the opinion. [1.] This was an action brought to recover back usurious interest, to which the plea of the Statute of Limitations was interposed ; and the only question to be determined is, whether the right of action accrued from the time when the usury was agreed to be paid, or actually paid. We think, most clearly, from the latter date, and for this reason: that while the agreement to pay was executory, being void, in law, it might be defeated. The payment of $1,400, made in January, lacked one hundred dollars of discharging the principal or original sum loaned. The holder retained possession of the note, and no part of the usury was paid till March thereafter, until the negro and other articles were delivered in pursuance of the contract made two months previously. Until this property was received, although in fulfilment of the engagement entered into in January, no unlawful interest was paid, and consequently no right of action accrued to the debtor to recover it back. We think there is no error in the judgment. It is therefore affirmed.