Natchez Building & Loan Ass'n v. Shields , 71 Miss. 630 ( 1893 )

Woods, J.,

delivered the opinion of the court.

As matter of fact, the appellee paid less than ten per cent, per annum interest on the amount of money actually advanced or loaned to him. Ilis' contract, most unfavorably construed for appellant, required the payment of lawful •interest on the amount of his bid; - the record shows that he finally paid less than lawful interest on the sum really received by him. It is difficult to conjecture where any claim of usury can be tenably planted.

But, independently of this, the appellee, on repaying his loan and withdrawing from the association, voluntarily made tbe settlement plainly shown in the record, and this he did with full knowledge of all the facts. In this voluntary settlement he made no mistake of fact; he has received subsequent enlightenment of law, as he now supposes. In this voluntary settlement, made with his eyes wide open, he received seventy-two one-hundredths of the premium bid by him, which was returned as unearned, and he received his share of all the profits made by the association during his membership and while enjoying the money loaned him, and these profits embraced his ratable part of all interest paid by all borrowing members, himself and others. In that settlement he took as his own his part of all interest now supposed to have been usurious, and yet holds it.

A-peremptory instruction for defendant should have been given.

Re-versed and remanded.