Saunders v. Lambert

73 Mass. 484

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1856
• Status: Published

Opinion

Bigelow, J.

This case clearly comes within the principle laid down in Stevens v. Lincoln, 7 Met. 525. The locus poenitentia still remains open to the defendants. They may hereafter relinquish their claim to the unlawful interest, and surrender the note and mortgage which they received from the plaintiffs, without receiving anything more than the original sum of nine hundred dollars, which they actually advanced to the plaintiffs, with lawful interest thereon. In that event, no usury will have been received by them. The payments already made by the plaintiffs have been appropriated by the parties in payment of the lawful debt, and not in satisfaction of the claim for usurious interest. If there had been no appropriation of those payments, the law would apply them in payment of the lawful rather than of the illegal demand. Wright v. Laing, 3 B. & C. 165.

The evidence does not show a sale of the note and mortgage to the defendants, but only an agreement by which they were put into the hands of the defendants as collateral security for the loan to the plaintiffs. There was therefore no proof of any payment of usurious interest. Exceptions overruled.