
    MARY J. MATHEWS and Another v. MISSOURI, KANSAS & TEXAS TRUST COMPANY.
    
    September 8, 1897.
    Nos. 10,224 — (70).
    Usury — Cancellation of Securities — Offer to Pay Debt — Scott v. Austin, 86 Minn. 460, Followed.
    
      Held, following- Scott v. Austin, 36 Minn. 460, that, by virtue of the statute, a plaintiff asking for the cancellation of securities for usury need not, as a condition of obtaining such relief, pay what he has received.
    Same — Evidence.
    Evidence held to sustain the finding and decision of the trial court to the effect that the securities here in question were usurious.
    Appeal by defendant from a judgment of the district court for St. Louis county entered pursuant to findings by Ensign, J.
    Affirmed.
    
      William G. White, for appellant.
    
      J. II. Richards, for respondents.
    
      
       Reported in 72 N. W. 121.
    
   PER CURIAM.

Action to obtain a cancellation, for usury, of certain notes and the mortgage securing them, made by the plaintiffs to the defendant. The trial court found that the notes and mortgage were usurious, and directed their cancellation. Judgment was so entered, from which the defendant appealed.

1. The defendant claims that the judgment is erroneous, because the plaintiffs should have been required to do equity, and repay, with interest, the amount of money actually received by them from the defendant, as a condition of obtaining a cancellation of the securities. The statute law of our state is otherwise, as interpreted in Scott v. Austin, 36 Minn. 460, 32 N. W. 89, 864, and followed in Exley v. Berryhill, 37 Minn. 182, 33 N. W. 567. We are asked by defendant’s counsel to re-examine and overrule those cases. The statute was correctly construed in the cases cited, and we adhere to them.

2. It is further urged by the defendant that the finding and decision of the trial court to the effect that the notes and mortgage were usurious and void are not supported by the evidence. The contract here in question, as evidenced by the notes and mortgage, is identical, except as to names, dates, and amounts, with the contract held to be usurious in the case of Missouri v. McLachlan, 59 Minn. 468, 61 N. W. 560, to which reference is here made for a statement of the general terms of the contract here in question. A like contract was also held usurious in the case of Missouri v. Krumseig, 28 C. C. A. 1, 77 Fed. 32. We are unable to distinguish this case from the McLachlan case. The finding and decision of the trial court are sustained by the evidence.

Judgment affirmed. 
      
       G. S. 1894, § 2217.
     