Page:Federal Reporter, 1st Series, Volume 6.djvu/225

 LATEOBB V. HULBERT. 213 �between the parties as to whether the rate of interesi paid or agreed to be paid was legal or in excess of that allowed by the law. It had not been discussed, and certainly such a question was not discussed upon that day. The only ques- tion had been and was, as to the amount of the proceeds of the sale the complainant should recoive upon his releasing the property sold, — the complainant desiring to receive the full amount of the proceeds of the sale, and the executors desir- ing to retain an amount for costs and expanses; and the parties finally agreed that the complainant, upon receiving $2,500, the interest then due, and $12,500 upon the princi- pal, should release the property sold. Nothing was said then or during the entire negotiation that the release was in con- sideration of a settlement and adjustment of the illegal inter- est which had been paid or was then being paid, I think, therefore, as a question of fact, that the release was not made upon the consideration of a settlement and adjustment of the excess of interest before and at the time paid. �This being so, there is nothing in the agreement itself which gives it the legal effect of estopping the defendants from setting up the usury in this case; and the remaining property covered by complainant's mortgage, not being in- jured by that released, and being amply sufficient for the payment of the balance due complainant, equity does not require that it should be so construed. �It is claimed, however, by complainant's eounsel, that admitting the arrangement of August, 1876, didnot estopthe defendants from setting up usury, that as to ail payments of interest subsequent to the first day of October, 1869, they cannot be held to be usurious ; for, by the law then in force, parties were authorized to contract for the payment of 8 per cent, interest, and, having paid what they might have con- tracted for, such payments are not usurious. �If my view of the testimony be correct, that the contract for the extension of five years was made with John W. Cole- man, it was made before the law of 1869 was passed, and the contract itself was usurious, The subsequent payments of ��� �