Switz v. Platts

Baldwin, Ch. J.

— A motion was made by the defendant to set aside the finding of the Court and the conclusions of law thereon, and the overruling of this motion is assigned as error.

The legality of the trustee’s sale is not in any manner questioned. The title to the fifty acres of defendant’s farm by virtue of this sale passed to Yedder. The contract, therefore, by which Yedder agreed to reconvey was separate and distinct from the original one, and while it appears that Yedder agreed to take in consideration the amount of the original or old indebtedness, yet this fact alone cannot place the parties in the position they were before the sale was made, as it respects the usurious contract, even so far as Yedder is concerned. This case is unlike that of Campbell v. McHarg et al., 9 Iowa, 355, cited by counsel, where this Court held, that where there was a change in the character of the securities, the usurious taint if once it existed was carried forward in the new evidences of indebtedness.

But if the plea of usury could be interposed in an action by Yedder to recover the amount defendant agreed to pay for the reconveyance of the fifty acres, could this defense be set up as against the plaintiff under the statement of facts as above made. It is true that plaintiff was fully acquainted with all the equities of both parties, and was advised of the consideration for which the note sued on was given, but he took the note at the request of defendant and advanced to Yedder the money tbereon. Plaintiff was not a party to a usurious contract, nor was he the recipient' of any usurious interest. He advanced the money for which the note was given at the instance and request of defendant.

Affirmed.