
    Richard T. Woolfolk vs. Aaron Bird & another
    January 22, 1876.
    Usurious Interest Voluntarily Paid. — One who voluntarily pays a rate of interest greater than that which the statute enables parties to stipulate for cannot recover the excess.
    Action to foreclose a mortgage. . In his answer the defendant alleged, as a counter-claim, the payment by him to plaintiff of interest in excess of twelve per cent, upon a loan other than that secured by the mortgage sought to be foreclosed, and ashed that the amount of such excess be set off against the mortgage debt. A demurrer to this counterclaim was sustained by. the district court for Blue Earth •county, Dickinson, J., presiding, and defendant appealed.
    
      Franklin H. Waite, for appellant.
    
      M. J. Severance, for respondent.
   Gifillan, C. J.

The only question in this case is, can cue who has voluntarily paid a rate of interest greater than that which the statute enables parties to stipulate for, recover bach the excess ?

The statute (Gen. St. ch. 10, § 1,) provides that “no •contract for a greater rate of interest than twelve dollars upon one hundred dollars for a year shall be valid for the -excess of interest over twelve per cent.,” but it lays no penalty for mahing such a contract. Its intention is effected by preventing a recovery of the excess. There is no obligat ion upon the debtor to pay such excess; but if he voluntarily pajTs it, such payment will stand as any other payment which one, without any obligation to do so, but with full knowledge of the facts, chooses to make.

In some of the states a recovery of excessive interest, voluntarily paid, is justified on grounds of public policy. The public policy indicated by our statute will prevent a recovery by the creditor of the excess stipulated for, but it does not require that the debtor shall be disabled to pay such excess, or to give away his money, if he chooses to make that use of it.

()rder affirmed.  