Benton v. Wilkins

The appeal is from a decree of foreclosure.

The contention of appellant is that the decree should have been in favor of the defendant on the theory that the defendant's defense of usury had been sustained by proof and that the mortgage should have been cancelled and the defendant should have had a decree against the complainant for double the amount of interest reserved and paid to the plaintiff.

The defense was timely made and was the issue tried by the chancellor. There was substantial evidence supporting the defendant's contention, but there was also ample substantial evidence to warrant the chancellor in finding in favor of complainant.

It is well settled in this jurisdiction that where the appeal is based on a question of fact in a chancery case, the findings of fact by the chancellor will not be disturbed on appeal where not clearly erroneous or where they did not proceed from consideration of the evidence in light of inapplicable principles of law. Wicker v. Trust Co. of Fla., 109 Fla. 411, 147 So. 586; Palm Beach Estates v. Croker, 106 Fla. 617,143 So. 792, and cases there cited. In the final decree the chancellor says: "The court is of the opinion that the defense of usury has not been sustained or proved." Where usury is interposed as the defense to avoid or to defeat an obligation to pay money, such defense must be established by clear and satisfactory evidence. Wicker v. Trust Co. of Fla.,supra, 27 R. C. L. 268.

In observance of the foregoing enunciation, the decree should be affirmed.

So ordered.

Affirmed.

ELLIS, P. J., and TERRELL, J., concur.

WHITFIELD, C. J., and BROWN and DAVIS, J. J., concur in the opinion and judgment.