
    Farm-Land Security Company, appellee, v. Peter B. Nelson et al., appellants.
    Filed November 18, 1897.
    No. 7582.
    Usury: Pleading. A plea quoted in the body of the opinion construed and held to state a defense of usury in the inception of a note.
    
      Appeal from the district court of Dawes county. Heard below before Bartow, J.
    
      Reversed.
    
    
      G. E. Bane and D. B. Jenclces, for appellants.
    
      Albert W. Grites, contra.
    
   Harrison, J.

This action was instituted by the appellee in the dis-, trict court of Dawes county, the purpose of the suit being the foreclosure of a real estate mortgage to enforce payment of the amount of a note secured thereby. As the result of a trial the appellee was accorded the relief sought, and the unsuccessful parties have prosecuted an appeal. In the answer filed for appellants appeared the following: “Admits that they executed and delivered the instrument and mortgage sued upon in this case to the Showalter Mortgage Company on the first day of March, 1889, and that afterwards, to-wit, on the — day of-, 1889, the said Showalter Mortgage Company, through its authorized agent in the city of Chadron, paid these answering defendants thereon the sum of $5,750 and no more, and that the note executed to the said Showalter Mortgage Company by these defendants for and upon said loan was $6,725 at the rate of 6 per cent interest thereon for the period of five years, which would amount to $8,742.50, and that the amount actually borrowed at 10 per cent interest from the date of the loan for a period of five years thereon would amount to $8,625, which would" leave a difference of $117.50 usurious, upon, the said loan, and that said rate of interest is illegal and usuriously contracted for, taken and reserved by the Showalter Mortgage Company and received by them at the time the said mortgage was given.” By objections to evidence the question was raised that the foregoing was not a plea of usury. The trial court sustained the objection and determined that there was no sufficiently stated defense of usury.

A fair construction of the foregoing allegation, although it probably lacks definiteness and certainty, we think is, that it states a contract for a loan to appellants of the sum of $5,750, and the execution of the note described in the mortgage in amount $6,725, with interest at 6 per cent per annum for the time of the loan, five years, pursuant to a contract by which there was reserved and to be paid to and received by the lender, a greater interest than the legal rate, 10 per centum per annum, on the amount of the loan; so construed it was a plea of usury and the court erred in excluding evidence offered to prove it. For the error indicated, the judgment must be reversed and the cause remanded for further proceedings.

Reversed and remanded.  