
    Allen v. Fogg.
    1. Mortgage: deed on face: burden of proof. One who claims that a deed absolute on its face was given only to secure a loan, and not to consummate an actual sale, must establish that fact by a preponderance of the evidence.
    2. Usury: not purged bt change of contract. A usurious contract cannot be purged of the usury by renewals, or by any other change in. the form of the contract.
    
      Appeal from Union Circuit Court.
    
    Tuesday, June 2.
    The plaintiff, by the proceedings in this case, claims that on the twenty-sixth day of October, 1877, be was tbe owner of a bouse and lot in tbe city of Crestón, and that on that day be borrowed of tbe defendant tbe sum of $600, and, to secure tbe payment of said sum, be conveyed said bouse and lot to tbe defendant by a general warranty deed, and that on tbe same day tbe defendant executed to tbe plaintiff a contract in writing, by which be bound himsplf to reeonvey tbe property to tbe plaintiff upon repayment of said loan and interest. He claims that tbe interest received was grossly usurious, amounting to 30 per cent per annum, and that be has paid more than tbe principal sum borrowed, and be demands a reconveyance of tbe property to him. Tbe defendant claims that tbe transaction was not a mere loan of money, but was a valid purchase and resale of the property, and that plaintiff has failed to pay the amount required by the contract, and is not entitled to any relief. There was a trial by the court, and a decree for the plaintiff. Defendant appeals.
    
      Wilson (& Laybourn, for appellant.
    
      James G. Bull, for appellee.
   Bothrock, J.

There is no question of law in the case. The rights of the parties are required to be determined upon the question whether the transaction between them was in the nature of a loan and a mortgage, or whether it was an actual sale of the property from the plaintiff to the defendant. The burden was on the plaintiff to show that the deed was intended as a mortgage. In our opinion the plaintiff sustained the allegations of his pleadings by full and satisfactory proof. It is true, there is no marked preponderance of oral testimony in his favor. But the acts of the parties, the possession of the property, and other circumstances, taken in connection with the oral evidence, very clearly indicate that the claim made by plaintiff is well founded. There is no doubt that the interest contracted to be paid was usurious, and that plaintiff has paid more than the principal sum-loaned. In answer to the claim made by defendant, by reason of the .surrender of the original contract and the substitution of a new one, it is enough to say that it is well settled that a usurious contract cannot be purged of the usury by renewals, or by any other change in the form of the contract. The decree of the circuit court will be

Affirmed.  