Dwyer v. Weyant

218 N.W. 140, 116 Neb. 485, 1928 Neb. LEXIS 142

Opinion

Per Curiam.

This is an action to foreclose a real estate mortgage. Defendant alleged usury as a defense. The trial court found that the contract was usurious and entered a decree, depriving plaintiff of any interest, and crediting all payments that had been made, as against the principal. From this decree, plaintiff appeals.

The note, to secure which the mortgage in controversy was given, required the payment of 10 per cent, interest from its date, and by its terms was to run for a period of five years from date. The mortgage contained a clause requiring the mortgagors to “pay all taxes which may be levied upon this mortgage and the indebtedness secured hereby, and hold mortgagee harmless therefrom.”

The facts disclosed by the record bring the mortgage contract squarely within the rule announced in Stuart v. Durland, 115 Neb. 211, wherein it was held: “A mortgage which, by its express terms, requires the mortgagor to pay the maximum legal rate of interest on the debt which it secures, and, in addition, to pay the taxes upon the mortgagee’s interest in the mortgaged premises, is usurious.”

The district court properly held that the contract was usurious, and therefore plaintiff was not entitled to recover any interest. All of the payments which had been previously made upon the note were properly credited upon the principal.

The decree is in conformity with law and is therefore

Affirmed.