
    ERWIN v. MORRIS.
    (Filed November 30, 1904).
    1. INTEREST — XJsury—Contracts.
    A contract for usury is void.
    2. INJUNCTION — Mortgages—Usury.
    A vendee of mortgaged land agreed with his grantor, the mortgagor, to pay the mortgagee what was actually due on the debt. The mortgage note called for usurious interest, and the vendee sued to restrain a sale under the mortgage, he alleging a tender of the amount actually due. The injunction should have been continued to a final hearing to determine whether the words “actually due” meant the face of the note or the amount legally due.
    ActxoN by J. A. Erwin against Z A. Morris, heard by Judge T. A. McNeiUat May Term, 1904, of the Superior Court of Oabmerus County. Erom an order vacating a restraining order the plaintiff appealed.
    
      Montgomery & Crowell, for the plaintiff.
    Osborne, Maxwell & Keerans, for the defendants.
   Connor, J.

Tbe ease is before us upon tbe plaintiff’s affidavit, defendants not having filed any answer thereto. Tbe question presented, whether the grantee of the mortgagor may avail himself of the plea of usury included in the debt secured by the mortgage or make the usury the basis for an action for equitable relief, has never before been presented to or decided by this Court. It is well settled by our decisions that, under the statute prohibiting the charging of usury, the promise to pay the usurious interest is void and cannot be enforced. Moore v. Beaman, 111 N. C., 328; S. C. on rehearing, 112 N. C., 558. The question presented upon this appeal is whether the defense is confined to the debtor, or, when the land is sought to be subjected, may be set up by the grantee of a. mortgagor. The allegation is that the plaintiff took the title to> the land upon a promise to pay what was “actually due” on the debt. It is not made clear what the real agreement was; if by the term, “actually due” is meant due on the face of the note, that is, in consideration of the conveyance of the land for a fixed price, the face value of the note was reserved by the plaintiff with a promise to pay it to the defendants, it would seem that such an agreement amounted to an application by the mortgagor of so much of the- purchase-money as was necessary to pa.y the note. If, however, the plaintiff simply assumed the position of the mortgagor, treating the word “actually” as meaning legally due, another and very different question would be presented. The authorities from other courts are not in harmony. In the present condition of the record we prefer not to decide the question. The injunction should have been continued to the final hearing, when the contract between the plaintiff and mortgagor can be ascertained. McCorkle v. Brem, 76 N. C., 407; Marshall v. Comrs., 89 N. C., 103.

Error.'  