
    Beals v. Lewis.
    
      Appeal — Waiver by receiving amount of judgment — Usury—Estoppel to assert — Usury in successive loans finally secured by mortgage — Right to deduct on foreclosure.
    
    1. In an action for an account of the amount due on a mortgage of real estate and a sale of the mortgaged premises, the only question was whether usurious interest was embraced in the mortgage. The court found that the mortgage did embrace Í>1,533.30 illegal interest, and found the amount due to the plaintiff to be as claimed by him, less such illegal interest, rendered judgment accordingly, and ordered a sale of the property to satisfy such judgment. The plaintiff received and receipted for the full amount of the judgment so rendered. Held, that the plaintiff did not thereby waive the right to appeal to the district court with respect to such alleged usurious interest. Tdbler v. l^iseman, 2 Ohio St. 207, distinguished
    2. A., B., and 0., partners, having executed a promissory note to D. embracing usurious interest, and having also executed to him a mortgage on real estate to secure the note, A. conveyed to B. and C. his interest in the partnership property, including the real estate mortgaged, B. and C. agreeing, in consideration thereof, to pay the firm debts, including the debt to D. Held, that B. and O. were not estopped to assert such usury, in an action by IX for the sale of the mortgaged premises; nor is the assignee in bankruptcy of B. and C. precluded from making such defense, although B. and 0., in the bankrupt proceeding, reported D.’s debt at the full amount claimed by him.
    3. In 1869, 1870, and 1872, A. loaned money to B., talcing at each loan a promissory note therefor, the note for the loan of 1870 embracing, also, the amount of the loan of 1869, and the note for the loan of 1872 embracing, also, the amount of the two preceding loans. In each off the notes usurious interest was incorporated. Held, that in an action to foreclose a mortgage given to secure the payment of the note of 1872, and obtain a sale of the mortgaged premises, all the illegal interest should be deducted.
    Error to the District Court of Huron county.
    March 11, 1872, Levi Lewis aud his sous, Charles A. Lewis and George W. Lewis, being partners in the mercantile and other business, in Huron county, under the firm name of Lewis & Sons, executed to Charles ~W. Beals a promissory note for $4,500, due in one year, with interest at eight per cent. To secure the payment of the note, the makers of the note, as individuals and as partners, executed a mortgage to Beals on real estate, in that county, which they owned, and that mortgage was filed for record and became a lien, March 20,1872.
    On September 1, 1876, Levi Lewis conveyed to his co-partners all his interest in the partnership property, including that mortgaged, they agreeing, in consideration thereof, to pay the firm debts, including the debt to Beals. Four days thereafter Levi Lewis died intestate. No administrator was appointed, nor did the surviving partners cause any inventory to be made of the, property, but they continued the business under the firm name of O. A. & G-. W. Lewis, and paid all debts of the firm, except Beals/
    May 14,1877, O. A. & G-. W. Lewis, as partners and as individuals, made an assignment under the state law to Elmer E. Husted, one of the defendants in error, for the benefit of their creditors, and they included in the assignment the mortgaged premises.
    April 30, 1878, C. A. & Gr. W. Lewis filed their petition in bankruptcy in the district court for the northern district of Ohio. Husted was appointed assignee in that proceeding, and they received a final discharge February 19,1879. Beals presented his claim to the assignee, amounting to au alleged balance of $5,509, with interest from June 3, 1878. The assignee claimed this included $1,533.30 usurious interest, and hence refused to allow the claim except with that amount deducted therefrom. Beals refusing to accept the amount so admitted by the assignee, brought suit in the court of common pleas of Huron county to foreclose the mortgage, making all persons in interest parties, and praying for an account of the amount due and an order of sale.
    After the cause had been tried and a judgment had been rendered finding-the amount due Beals to be as claimed by the assignee, Beals gave notice of appeal to the district court, but before the appeal was perfected he received from the assignee the whole amount of the judgment, and afterward prosecuted the appeal. In the district court the only question was whether Beals was entitled to recover the above mentioned sum of $1,533.30, with interest from May 24,1880, or whether he was precluded from recovering it on the ground that it was usurious interest, which had been incorporated in the above mentioned note. The cause was heard on petition, answers, replies, and testimony, and the finding of the district court as to the illegal interest was the same as that of the court of common pleas. This petition in error was prosecuted by Beals to obtain a reversal of the judgment of the district court.
    The debt to Beals arose in this way. The first loan to Lewis & Sons was $500, November 4, 1869, for which a note was given for $506.16, due in four months, with interest at eight per cent, and signed in the firm name. On March 7, 1870, Beals loaned the firm an additional sum of money and took from the firm a note embracing as well such loan as also the amount of the first note, the amount of such second note being $2,592.60. And on March 11, 1872, Beals loaned to the firm an additional sum of money and took from the firm the note and mortgage for $4,500, above mentioned, such note embracing as well the money so loaned as also the amount of such second note. In each of these three notes illegal interest was incorporated, the amount of such illegal interest being $1,533.30, as above stated.
    
      Young $ Young and Cf. T. Stewart, for plaintiff in error.
    
      G. L. II. L. Kennan, and J. JS. Dickson, for defendants in error.
   Okey, J.

1. In some cases a party, by receiving the amount of a judgment in his favor, waives the right to prosecute error or an appeal. Tabler v. Wiseman, 2 Ohio St. 207, 216. But that principle does not apply here. The plaintiff received the amount admitted to be due, and for which the court had rendered judgment; but the only matter in controversy was as to $1,533.30, which the defendants alleged and the court found to be usurious interest, which the plaintiff was not entitled to recover. We think it was competent for the plaintiff to receive the amount of the judgment, and prosecute an appeal, and finally a proceeding in error, with respect to the claim for $1,533.30. U. S. v. Dashiel, 3 Wall. 688; Embry v. Palmer, 107 U. S. 3.

2. Levi Lewis conveyed his interest in the partnership property to C. A. & G. W. Lewis, in consideration, among other things, that they would pay the partnership debts, Including the debt of Beals. Busby v. Finn, 1 Ohio St. 409; Cramer v. Lepper, 26 Ohio St. 59 ; and Jones v. Ins. Co., 40 Ohio St. 583, are cited to show that C. A. & G. W. Lewis are estopped. These cases do not apply. The defense is "interposed by C. A. & G. W. Lewis, not as the assignees or vendees of Levi Lewis, but as debtors, as makers of the note, and as mortgagors, and they may well make such defense. 1 Jones on Mortg., § 644 ; 1 Pomeroy’s Eq., § 391. Nor is the assignee precluded from making such defense, although O. A. & G. W. Lewis may have returned the debt, in the bankruptcy proceeding, at the full amount claimed by Beals. Union Bank v. Bell, 14 Ohio St. 200, 210; In re Prescott, 5 Biss. 523.

3. It is said the transaction of March 7, 1870, by which the note of $506.16 was canceled, and a new note, embracing that note and an additional sum of money, was executed, operated as payment of the old note; and that the same effect followed the transaction of March 11, 1872, when the second note was canceled, and the note and mortgage for $4,500, embracing such second note and an additional sum of money were executed. But prima, facie the second and third notes were notes in renewal (Baggs v. Loudenback, 12 Ohio 153 ; 34 Ohio St. 146), as well as evidence of the additional loans, and we see nothing in the transactions which leads to the conclusion that we should regard either the first or second notes as paid. They were simply canceled, and the debt they evidenced remained unsatisfied. The only transaction was a loan of money by Beals to Levi Lewis and his two sons, and although the money was not all advanced at one time, but different amounts were advanced on three different occasions, the lender and borrowers were in each case the same, and in the notes evidencing the debt Beals was always the payee, Lewis & Sons the makers. The district court did not err.

Judgment affirmed.  