Wilson v. Selbie

Citations

• 7 S.D. 494
• 64 N.W. 537
• 1895 S.D. LEXIS 106

Syllabus

<p>1. Where, as in this state, the statute punishes only the taker of usurious interest, by declaring a forfeiture of all interest so contracted for or received, the person paying the same may, independently of the statutory remedy, maintain an action for money had and received, as at common law, to recover the excess so paid over the legal rate, or he may have such excess applied towards the payment of his debt.</p> <p>2. This right continues, at least, until cut off by a plea of the statute of limitations applicable to actions for money had and received.</p> <p>8. The subsequent repeal of the law declaring such forfeiture did not affect the right so resting, not on the statute, but on the implied promise.</p> <p>4. By section 1100, Civ. Code, (Sec. 3733 Comp. Laws,) the usurious contract forfeited all interest, legal and illegal, but provided for the recovery by action of the excess over the legal interest only. By chapter 70, Laws 1889, this section was amended by providing that, “if any part of such interest shall have been paid, it may be recovered in an action for that purpose, or set off in an action to recover such principal.” The effect of this amendment was to make available, as a cause of action or set-off, any forfeiture or penalty not barred or stale by the rule of the statute, and did not apply to payments of legal interest, made more than three years prior to the commencement of the action on the principal debt.</p> <p>(Syllabus by the Court.</p>