
    [Filed June 10, 1885.]
    E. R. POPPLETON v. T. B. NELSON et al.
    Usury—Degree of Proof. — To establish the defense of usury requires clear and cogent proof. Vague inferences or mere probabilities or conjectures are not sufficient.
    Yamhill County. Defendants appeal.
    Affirmed.
    Suit to foreclose a mortgage. The answer sets up the following facts, and claims that they render the pote and mortgage sued on usurious: That in February, 1874, defendant ISTelson requested Edgar Poppleton to loan him $1,300, which he agreed to do for a ten per cent bonus and twelve per cent interest, to which Nelson agreed; that on the 4th day of May, 1874, Nelson applied to said Edgar Poppleton for said money upon said conditions; said Poppleton refused to make said loan unless he pay $22 accrued interest and $11 recording and attorneys’ fees in addition to said bonus; that on said day Nelson executed said note for the whole of said sums, amounting to $1,463; that said $1,300 was the money of Edgar Poppleton and not the money of the plaintiff, and that said note was so executed to plaintiff so that Edgar Poppleton could obtain a greater amount of interest than is allowed by law, being $163 in excess of legal interest; that said note and mortgage were executed in the plaintiff’s name by collusion and fraud between the plaintiff and said Edgar Poppleton, in order to avoid and circumvent the statute of usury ; that plaintiff never was the true owner of said money loaned or the note or mortgage given to secure the same, but that they were and are the property of Edgar Poppleton; that on or about July 18, 1874, said note and mortgage were transferred by plaintiff to Edgar Poppleton by indorsement of said note; that by the terms of said mortgage defendant Nelson agreed to pay five per cent additional as attorney’s fees; that said Nelson covenanted therein to pay all assessments of taxes levied upon the premises described in the mortgage, or upon said mortgage, or the money secured thereby.
    
      James McCain, and W D. Fenton, for Respondent.
    
      A. M. Laughary, for Appellants.
   Loud, J.

This is a suit in equity to forclose a mortgage. The defense is usury. This is the main question involved, and is one of fact, which needs to be proved by clear and satisfactory evidence. As the defense of usury involves a forfeiture, it is considered as an unconscionable defense, and a strict one. To establish such a defense the court requires clear and cogent proof, and will ngt accept vague inferences, or mere probabilities, or resort to conjectures, to aid the defense. The burden of proof is on the defense, and he must sustain his allegations by a clear preponderance of evidence He is impeaching his own solemn obligation under seal, and must establish the facts necessary to constitute it, beyond reasonable doubt. It is not sufficient to show an even balance of testimony; there must be a clear preponderance. Usury is a defense not favored in equity; the old consequences, the forfeiture of the whole debt, was so severe a penalty that it was considered unconscientious.” (Zabriskie, Chancellor, in Conover v. Van Mater, 18 N. J. Eq. 487.) “The burden of proof,” said Depue, J., “is on the defense, and the defense cannot be supported by probabilities or suspicions, however strong. If allowed to prevail, it must be supported by such preponderance of evidence as establishes the truth of the allegations on which it depends beyond a reasonable doubt.” (Taylor v. Morris, 22 N. J. Eq. 612; Brolasky v. Miller, 8 N. J. Eq. 789; New Jersey Pat. T. Co. v. Turner, 14 N. J. Eq. 326.) And again he says: “ If the defense of usury should ever be sustained upon the uncorroborated testimony of the party by whom the security was made, the testimony should be in all respects unexceptionable.” (See also 1 Jones Mortg. § 643; Tyler Usury, 122.) These references are sufficient to show how the defense of usury is regarded in equity, and the strictness of proof required to support it. As by our statute such a defense involves by way of penalty the loss of the debt, the proof of ■ it ought certainly to be clear and satisfactory. After careful examination of the evidence, we are satisfied the charge of usury is not sustained. There is no clear and direct proof, and the inferences and conjectures sought to be drawn from some of the facts are too unreliable on which to base a conclusion.

The decree'of the court below must be affirmed.  