Allen v. Fogg

23 N.W. 643, 66 Iowa 229

• Court: Supreme Court of Iowa
• Decided: June 2, 1885
• Status: Published

Opinion

Bothrock, J.

There is no question of law in the case. The rights of the parties are required to be determined upon the question whether the transaction between them was in the nature of a loan and a mortgage, or whether it was an actual sale of the property from the plaintiff to the defendant. The burden was on the plaintiff to show that the deed was intended as a mortgage. In our opinion the plaintiff sustained the allegations of his pleadings by full and satisfactory proof. It is true, there is no marked preponderance of oral testimony in his favor. But the acts of the parties, the possession of the property, and other circumstances, taken in connection with the oral evidence, very clearly indicate that the claim made by plaintiff is well founded. There is no doubt that the interest contracted to be paid was usurious, and that plaintiff has paid more than the principal sum-loaned. In answer to the claim made by defendant, by reason of the .surrender of the original contract and the substitution of a new one, it is enough to say that it is well settled that a usurious contract cannot be purged of the usury by renewals, or by any other change in the form of the contract. The decree of the circuit court will be

Affirmed.