
    Farmers Bank of Kearney v. Edward Oliver.
    Filed September 23, 1898.
    No. 8271.
    Usury: Renewals: Defense to.Note. Where a usurious loan has been repeatedly renewed, and the notes evidencing- the indebtedness have been taken in the name oí a bank, or of its cashier, indifferently, and each transfer has been after due, the holder of the final note, who prosecutes the action, does so subject to any defense of usuty which might have been set up against said note or any of its antecedents.
    Error from the district court of Buffalo county. Tried below before Sinclair, J.
    
      Affirmed.
    
    
      Dryden & Main, for plaintiff in error.
    
      E. G. OalJdns, II. V. Galldns, and F. G. Hamer, contra.
    
   Ryan, C.

This action was brought in the district court of Buffalo county by the Farmers Bank of Kearney on a promissory note of date August 16, 1893, payable December 16, 1893, to S. H. Graves or order. The defense was usury, and the evidence was no.t conflicting that there was usury, but there ivas a contradiction as to the rate per cent charged and collected in excess of the maximum allowed by statute. The note sued on was one finally given after a series of renewals. Wfien the first note in the series was made, wliiefi was May 4, 1884, S. H. Graves and H. J. Robbins were the. payees. From that time until July, 1889, Graves conducted tlie banking business as the successor of Graves & Robbins. At the date last named the Skel-ton Bank was actually incorporatéd, though during the time when Graves alone was conducting the business he used the name of the Shelton Bank, it is unnecessary to discuss the rights of innocent purchasers of usurious notes, for there was none such in this case, for the Shelton Bank, after its incorporation, was managed by Graves as its cashier, and whenever there was a transfer in the course of the several transactions it was of a note past due by its terms. Mr. Graves testified as a witness for Oliver, and in his testimony stated that the first loan to Mr. Oliver, May 4, 1884, was of $1,215. The next loan was on September 5,1885, of $617.72. On August 4,1886, there was a further loan of $851.75. On August 19,1887, there was still another loan of $781.05. And on May 12, 1888, there was a loan of $519. On May 29, 1888, there was a loan of $578.42. On January 17, 1890, there was a note made for $152.75, of which $121 had been evidenced by a small note. The defendant testified that he paid interest at the rate of 18 per cent per annum for three years, and thereafter at a less rate, decreasing to 12 per cent per annum, which last named rate was paid on. the final note. 'Some of these payment were made in cash and some were included in the renewals. It was admitted by Mr. Graves that there had been a payment of $2,500 on August 16, 1898. Now, giving him credit for all the money he would testify there was actually loaned, the sum total is $4,094.69, from which having deducted the payment of $2,500 there remained $1,594.89 of the principal without reference to interest. The evidence was not explicit or satisfactory as to the amounts of interest paid. The jury evidently accepted the general statement of Mr. Oliver as to the rate per cent at which be paid during deferred periods, and tbe amounts tbns fixed exceeded tbe face of tbe note sued on.

It is ho wever insisted — and one citation is made of an adjudicated case, wbicb perhaps somewhat tends to establish tbe proposition — that, as tbe transaction at one time branched into trvo notes, one of wbicb was overpaid by the $2,500 payment, the proportioned usury on that note could .not be availed of by tbe defendant on this note. The transactions were treated by Graves as indivisible, and tbe taking of tbe two notes was a mere matter of bis own convenience. Tbe defendant in error, it was stipulated, took tbe note in suit after its maturity, tie was therefore in tbe same situation that bis grantor would have been in bad be sued, and tbe note was subject to tbe same defense of usury.

There is found no eiaor in tbe record, and tbe judgment of tbe district court is

AFFIRMED. 
      
      
         Aiken v. Waco State Bank, 16 S. W. Rep. [Tex.] 747,
     