Smith v. Glanton

39 Tex. 365

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

Walker, J.

It is possible his honor the district judge may have applied to this case the provision contained in :the 44th Section of the 12th Article of the Constitution.

Respect should, however, have been paid to the fact -that this suit was commenced in May, 1867, long before the adoption of the present Constitution.

The law applicable to this case, if, indeed, the contract was originally usurious, is contained in Article 3942, Paschal’ s Digest.

If a greater amount of interest than that allowed by law was contracted for, then the jury should have been •instructed to apply the payments to the principal of the .debt.

The plea of usury was a proper defense, and should .have been admitted; and if the defendant had evidence do offer under-it, he should have been permitted so to do.

Ho usurious contract is permitted to escape the vigilant -inquest of a court of equity.

If the contract was originally usurious, no device can >,be permittedito cover it up, such as the taking of a new note, the payment of interest without credit, or any other scheme or contrivance of the parties to blind the eye of the law.

• The inquiry, under a proper defense, may always be 'made; and so long as any portion of the debt remains unpaid, the statute of limitations will not cut off the right • of a party who has paid usurious interest to recover it ■back.

The judgment of the District Court is reversed and the ■cause remanded.

Reversed and remanded.