On Rehearing. +1. A judgment upon which no execu-sufficient to have satisfied said judgment; and tion has been issued for twenty years, in the absence of explanatory facts or evidence, is presumed to be paid. The burden of proof is on the judgment creditor. 2. To avoid objection by demurrer, the plaintiff must allege in his complaint the facts and circumstances on which he relies to rebut such presumption. A (June 18, 1890.) PPEAL by defendant from a judgment of the Circuit Court for Jackson County in favor of plaintiff in a statutory proceeding to revive a judgment. Reversed. Statement by Strahan, J.: This is a proceeding to revive a judgment, under section 295, Hill's Code. The plaintiff alleges, in his motion for leave to issue execution, that on the 5th day of February, 1861, he recovered a judgment against the defendant in the Circuit Court of Jackson County, Or., in an action at law in which said C. C. Beekman was personal, in his own right, which property was subject to execution and which was amply the defendant avers that for about the period of twenty-six years he was absolutely ignorant that said alleged judgment appeared of record against him, and that during that period of time he had several settlements with the plaintiff, had money and other articles of value deposited with him and in his care, and withdrew the same from his care at defendant's pleasure; and that during all that period of time, and not until the last settlement was had between the plaintiff and defendant, did the plaintiff mention the fact that he held the alleged judgment against the defendant. Some other facts are alleged which need not be specially noticed. The record recites that the court sustained a demurrer to subdivisions 3 and 5 of the defendant's answer, but the dedoes it anywhere appear on what ground said murrer nowhere appears in the transcript, nor demurrer, if any was filed, was sustained. On the trial the defendant offered evidence tending to prove the matter in his answer, all of which taken. At the trial the plaintiff introduced a was objected to and excluded, and exceptions certified copy of the judgment roll in the case of Beekman v. Hamlin and rested. The defendant sought to introduce evidence tending to prove facts showing that said judgment had been paid; that is, that several times after the rendition of the judgment said parties had various business transactions and full settlements; but all of this evidence was excluded, and exceptions taken. The court then directed a verdict for the plaintiff. Mr. Francis Fitch for appellant. Messrs. P. P. Prim, H. K. Hanna and C. W. Kahler for respondent. plaintiff and said James Hamlin was the defendant, for the sum of $751.43, with interest thereon from said date at the rate of 14 per cent per month; and also for the further sum of $756.32, with interest thereon at the rate of 2 per cent per month, and the costs and disbursements of said action; which judgment was duly entered on the journal record of said court, on the 5th of February, 1861, and on the 28th day of February, 1861, was duly entered on the judgmentlien docket of said court. That no payments have been made on said judgment, and that the whole amount of principal and interest, as therein stated, is now due to the plaintiff. That no execution has been issued on said judgment for more than twenty years. Then follows a prayer for leave to issue an execution for said sums with interest, at the rate specified in the motion. The defendant's answer con1. The judgment sought to be revived in this tains some denials, but they are not full or case was rendered on the 5th day of February, specific, leaving it somewhat uncertain what 1861, and the record does not show that any the defendant intended to deny. The answer execution was ever issued thereon. This proalleges that the defendant was not served with ceeding was commenced on the 19th day of notice of the filing of the amended complaint March, 1889, so that more than twenty-eight in the original action. After alleging some years intervened between the date of the entry other argumentative matter that has no rele- of judgment and this attempt to enforce it. vancy whatever, the answer contains this alle- The only question I have thought it necessary gation: That said alleged judgment has been to consider is, What effect has the lapse of allowed to remain dormant for about twenty-time upon the right to enforce this judgment, eight years, during all of which period the independent of the Statute of Limitations?-in defendant has owned property, both real and other words, What would be the rights of the parties in this case if no Statute of Limitations +Head notes by LORD, J. Strahan, J., delivered the opinion of the court: Eq. 354; Moore v. Smith, 81 Pa. 182; Henderson v. judgment in ejectment is not an original suit, but Lewis, 9 Serg. & R. 379. But the mere lapse of time less than twenty years does not afford any ground for a presumption of payment or satisfaction of a specialty. Miller v. Smith, 16 Wend. 425; Cope v. Humphreys, 14 Serg. & R. 15; Summerville v. Holliday, 1 Watts, 507; Wills v. Gibson, 7 Pa. 154; Denny, v. Eddy, 22 Pick. 533; Wood, Lim. Act. 341. Actions upon judgments of courts of record are not barred until the expiration of twenty years after the date of their rendition. Rev. Stat. § 3251; Meyer v. Mehrhoff, 2.West. Rep. 417, 19 Mo. App. merely a continuation of the suit in which the judgment was rendered, such proceeding is not barred by adverse possession, the only limitation available being the twenty years' statute, which bars the judgment itself. Smith v. Stevens, 133 Ill. 183. The institution of a proceeding to revive a judgment which is served on the defendant within the statutory period of limitation stops the running of time as to the presumption of payment; and the judgment may be revived although the order is not made until after the limitation has expired. Wood v. Milling (S. C.) March 25, 1890; Leitner v. Metz (S. C.) March 25, 1890. administrator should be exempted from the necessity of hunting up evidence to prove accounts and vouchers which ordinarily enter into such settlements, and which, after such a lapse of time, it would perhaps in most cases be impossible for him to obtain." were in force in this State? And this presents | tion of payment arises, and the executor or the question, What effect has the lapse of time, in this State, upon the right of a party to have a judgment renewed by the statutory proceedings? Does the common-law presumption of payment after twenty years arise in such case, and what is its effect? Section 172, Wood on Limitation of Actions, says: "In all those States where sealed instruments, or 'specialties,' as they are technically called, are expressly brought within the Statute, the Statute begins to run from the time when a cause of action arises thereon, and the bar is complete at the expiration of the statutory period; while in those States where this class of instruments are not provided for the common-law presumption of payment attaches from the time when the cause of action arises, and becomes complete as a presumptive bar at the expiration of twenty years from that time; and the mere lapse of twenty years without any demand of itself raises a presumption of payment." And the same author says, in section thirty of the same work, that "a judgment obtained in the United States court, or in the courts of the State where the remedy is sought, is a specialty within the provision of the Statute;" that is, the Statute in Relation to Specialties,-twenty years. "The rule of presumption, when traced to its foundation," is said to be "a rule of convenience and policy, -the result of the necessary regard to the peace and security of society. No person ought to be permitted to lie by whilst transactions can be fairly investigated and justly determined until time has involved them in uncertainty and obscurity, and then ask for an inquiry. Justice cannot be satisfactorily done when parties and witnesses are dead, vouchers lost or thrown away and a new generation has appeared on the stage of life, unacquainted with the affairs of a past age and often regardless of them." After stating the inconveniences which necessarily result from a contrary rule, the court in the same case says: "In a word, the most solemn muniments are presumed to exist in order to support a long possession; the most solemn of human obligations lose their binding efficacy and are presumed to be discharged after many years." Foulk v. Brown, 2 Watts, 216. So in Sims v. Aughtery, 4 Strobh. Eq. 103, the court applied the same principle, after a very careful examination of the subject. After adverting to the Statute of Limitations as one of the means of giving repose to stale subjects of litigation, the court remarked: "We have another system of rules, founded upon what is called the doctrine of legal presumptions,' which prevail alike in courts of law and equity, and which are eminently subservient to the quieting of titles and the prevention of litigation arising upon obscure and antiquated transactions. If these legal presumptions require a longer period than statutory bars to acquire force and effect, they are more general in their operation. They are highly conducive to the peace of society and the happiness of families, and relieve courts from the necessity of adjudicating rights so obscured by time and the accidents of life that the attainment of truth and justice is next to impossible. . . These legal presumptions, by which conflicting claims and titles are set at rest, I have endeavored to show, are natural and necessary. They spring spontaneously out of the institution and relations of property. As to the precise time at which they arise, each independent community must judge for itself. We have adopted the law of the mother country. In South Carolina, as in England, by the lapse of twenty years without admission specialties and judgments are presumed to be satisfied and trusts discharged." And McArthur v. Carrie, 32 Ala. 75, is a very carefully considered case and to the same effect. And this is followed by Goodwyn v. Baldwin, 59 Ala. 127. Many other authorities are to the same effect. Ray v. Pearce, 84 N. C. 485; Olden v. Hubbard, 34 N. J. Eq. 85; Lyon v. Adde, 63 Barb. 89. In this latter case the court states what we conceive to be the correct rule, thus: "In the case of an obligation which can be extinguished by an act in pais,-such as payment,-there So in Tilghman v. Fisher, 9 Watts, 441, the is an absolute presumption of payment after court said: "Such a lapse of time, in the twenty years. It is a presumption of law, and absence of repelling evidence, is sufficient in can be rebutted only by some positive act of law, without more, to raise a presumption of unequivocal recognition, like part payment or payment that would be binding upon both a written admission, or at least a clear and court and jury, so as to entitle the defendant, well-identified verbal promise or admission under a plea of payment, to a verdict and intelligently made within the period of twenty judgment in his favor. But being merely a years." And in Olden v. Hubbard, supra, it presumption of the defendant's having made was expressly averred in the bill that no paypayment, it may be rebutted by proof of inter- ment had been made on the mortgage which vening circumstances, such as a demand of was sought to be foreclosed for more than payment, payment of part by the obligor, his twenty-three years, and that the principal and admission that the debt is still due or his interest were then due and owing; and, on inability to pay it within the twenty years.' demurrer to the bill, it was held that, while And in Rhodes v. Turner, 21 Ala. 210, the the demurrer admitted all material facts, these principle under consideration was directly ap-statements were not admitted, because they plied to a judgment, the court saying: "If a were rather conclusions than averments of final judgment had been rendered, according to the principles of the common law it would be presumed to have been paid after the expiration of twenty years; and if the parties allowed In Cope v. Humphreys, 14 Serg. & R. 15, it this period to elapse without taking any steps was held that after the lapse of twenty years a to compel a settlement, we think the presump-judgment is presumed to have been satisfied facts; and it was further held that any existing facts which would repel the presumption of payment must be averred in the bill. unless there be circumstances to account for | ties depend. The defendant, instead of directthe delay. And, in the opinion of the court in that case, Peake, Ev., 481, is cited, where it is stated that twenty years is presumption of payment of a bond, and the same rule applies to scire facias for execution on a judgment. And Miller v. Smith, 16 Wend. 425, is to the same effect. It is not possible to cite all the cases bearing on this interesting subject, but the following may be added as additional illustrations of the principle involved: State v. Virgin, 36 Ga. 388; Willingham v. Long, 47 Ga. 540; Whitney v. French, 25 Vt. 663; Anderson v. Settle, 5 Sneed, 202; Diamond v. Tobias, 12 Pa. 312; Reynolds v. Green, 10 Mich. 355; Howland v. Shurtleff, 2 Met. 26; Anderson v. Smith, 3 Met. (Ky.) 491; Cheever v. Perley, 11 Allen, 584; Inches v. Leonard, 12 Mass. 379; Summerville v. Holliday, 1 Watts, 507; Freem. Judgm. § 464; 1 Greenl. Ev. § 39. 2. The foregoing authorities hold with great uniformity that the lapse of twenty years creates a presumption of law that specialties, including judgments, have been paid; but this presumption is not, under all circumstances, absolutely conclusive. It may be disputed and overcome. In what manner this may be done, or what shall be sufficient to produce that result, the authorities are not agreed. Some of the authorities hold that any evidence tending to prove nonpayment may be sufficient; that the fact must be found by the jury, and that any evidence ordinarily competent on the question of payment, if it satisfies the jury, is all that the law requires. Another class of cases, and which we think have the better reason to support them, hold with Lyon v. Adde, supra, that this presumption is one of law, and can be rebutted only by some positive act of unequivocal recognition, like part payment or a written admission, or, at least, a clear and wellidentified verbal promise or admission, intelligently made, within the period of twenty years. So, in Cheever v. Perley, supra, it was held, if parol evidence was relied upon to control the presumption, it should clearly show some positive act of unequivocal recognition of the debt within that time, that is, within twenty years. And in Summerville v. Holliday, supra, it is said that it is not so much a presumption that the money has been paid, or a right of way granted, as it is the substitution of an artificial rule in the place of evidence or belief, after a delay which may have been destructive of the evidence on which a belief might be justly founded. So, also, in Whitney v. French, supra, Chief Justice Redfield, in speaking of this presumption, said: "It is a presumption of law, and in itself conclusive, unless encountered by distinct proof. It is not to be submitted to the mere discretion of a jury, although adversely an inference of fact, where there is any conflicting evidence. And this presumption of payment of a mortgage or release of an estate is often made against what is believed to be the very fact, for the purpose of quieting a long adverse possession, and to prevent virtual fraud, by the setting up of dor. mant title long since supposed to have become extinct." 3. The pleadings in this case are so framed that it was hardly possible to properly try the real questions upon which the rights of the par ly pleading in his answer that he had paid the judgment mentioned in the plaintiff's pleading, alleged evidentiary facts, which, if proven, would have tended very strongly to establish the fact of payment. This was bad pleading on the part of the defendant; but the objection, I think, ought to have been taken by motion, and not by demurrer. It related more to the form of the pleading than it did to the substance, but there is neither demurrer nor motion in the record; and we cannot know just what objections were urged against this pleading, nor in what form, further than is recited in the journal entry that it was by demurrer. The defendant seems to have acted at the trial on the assumption that the facts alleged in his answer remained a part of the record because he offered proof on the point originally alleged, but the same was objected to and excluded. The facts which the defendant offered to prove at the trial were that, for several years after the rendition of the judgment attempted to be revived, the plaintiff and the defendant had large dealings together, and many settlements and business transactions together. This was evidence to go to the jury which they would have had the right to consider, if the pleadings were in such a condition as to render it admissible; but of this there is considerable uncertainty. But I think the plaintiff's pleading is also insufficient, in that it fails to allege any facts or circumstances which would excuse the long delay, or which tended to continue the defendant's liability after twenty years. This was expressly held to be necessary in Olden v. Hubbard, supra. Several other questions were discussed by the appellant's counsel, but their consideration is deferred, for the reason the record is not in proper condition to present them. The judgment will be reversed, and the cause remanded; and if, in view of the opinion of this court, either party shall deem it necessary to amend his pleading, and retry the case in the court below, no doubt that court will afford either or both of the parties an opportunity to do so. We have purposely avoided saying anything in regard to the Statute of Limitations, for the reason that, if that objection were available to the defendant, it was apparent on the face of the plaintiff's pleading, and should have been taken by demurrer. Let the judgment be reversed. A petition for rehearing having been subsequently filed, on January 21, 1891, Lord, J., on behalf of the court, delivered the following opinion in response thereto: A re-examination has satisfied us that the case was properly disposed of in the first instance. We are only led to express ourselves further in consequence of a misapprehension that it was intended in the opinion to limit the rebutting evidence to some positive act of unequivocal recognition on the part of the defendant within the period of twenty years. The rule of common law that after twenty years payment of a bond or judgment will be presumed in the absence of evidence explaining the delay, although there is no statutory bar, is founded on the "rational ground that a person naturally desires to possess and enjoy his own, and that an unexplained neglect to enforce an alleged right, for a long period, casts suspicion upon the existence of the right itself." Bean v. Tonnelle, 94 N. Y. 386. The effect of the presumption of payment, arising from lapse of time, is to change the burden of proof from the debtor to the creditor. Within twenty years the law presumes that the debt has remained unpaid, and the burden is on the debtor to prove payment, but after twenty years "the creditor is bound to show by something more than his bond that the debt has not been paid, and this he may do because the presumption raises only a prima facie case against him." Reed v. Reed, 46 Pa. 242. But the onus of proof upon the creditor is not to establish a new contract, or promise, as when a debt is barred by the Statute of Limitations, but to show by competent evidence that the debt or judgment has not been paid. The distinction which the law raises between the presumption of payment after the lapse of twenty years and the bar interposed by the Statute of Limitations is in its nature essentially different. "The bar is removed," said Strong, J., "by nothing less than a new promise to pay, or an acknowledgment consistent with such promise. The presumption is rebutted, or, to speak more accurately, does not arise, where there is affirmative proof beyond that furnished by the specialty itself, that the debt has not been paid, or where there are circumstances that sufficiently account for the delay of the creditor. The statutory bar is not removed without a new promise or its equivalent, because suit on the old contract is prohibited, and the debtor can only be liable therefor on the contract expressly made by the new promise, or implied from an acknowledgment of continued indebtedness, the old debt being the consideration for the new engagement." Reed v. Reed, supra; Bentley's App. 99 Pa. 504. Prima facie, the presumption annuls the judgment, but it can have no application "if it can be made to appear that the plaintiff has used diligence to enforce the judgment, or that the defendant has paid interest or otherwise acknowledged the debt." Burt v. Casey, 10 Ga. 179. Clark, J., said that the presumption may be rebutted by circumstances, by evidence tending to show nonpayment of the debt, or suf ficiently accounting for the delay of the creditor, or showing a continued course of legal proceedings conducted bona fide to compel payment. Van Loon v. Smith, 103 Pa. 242. And Kennedy, J., said: "Being merely a presumption of the defendant's having made payment, it may be rebutted by proof of intervening circumstances, such as a demand of payment, payment of a part by the obligor, his admission that the debt is still due, or his inability to pay it within the twenty years." Tilghman v. Fisher, 9 Watts, 442. 10 L. R. A. And, again, in Gregory v. Com., 121 Pa. 622, it is said: "It is not required that the same precision and particularity of proof shall in all respects be observed as has been required to remove the bar of the Statute of Limitations, but, as the presumption of payment after twenty years is a strong one, the evidence to rebut it must be satisfactory and convincing; especially is this so when the suit is not brought until after the defendant's death." In Walker v. Robinson, 136 Mass. 282, the court says: "We are of the opinion that any legal evidence having a tendency to show that the judgment has been paid or satisfied is competent, and that if the evidence furnished is such as to produce conviction that the judgment has not in fact been paid or satisfied it is sufficient to rebut the presumption." Woods v. Naumkeag Steam Cotton Co. 134 Mass. 357; Brewer v. Thomes, 28 Me. 81; Denny v. Eddy, 22 Pick. 533. All the cases hold that the presumption is rebuttable, and that the plaintiff may do this by showing what diligence he has used to enforce his judgment, or admissions of the defendant or other circumstances, such as insolvency, or that the debtor was beyond the sea, or other evidence which satisfactorily accounts for his delay. Or, as Mr. Greenleaf says: "But in all these cases the presumption of payment may be repelled by any evidence of the situation of the parties, or other circumstances tending to satisfy the jury that the debt_is_still due." Greenl. Ev. 39; Freeman, Judgm. § 464; Wharton, Ev. § 1364; 13 Am. & Eng. Encyclop. Law, 673. But a presumption of payment from lapse of time may be raised by demurrer when shown by the facts stated in the complaint, as was done. Olden v. Hubbard, 34 N. J. Eq. 85. And to repel such presumption, any existing circumstances which would have that effect should be alleged. In Solomon v. Solomon, 81 Ala. 507, it was held that the presumption of payment, arising from the lapse of time, may be taken by demurrer when shown by the facts stated, but that it is a matter of defense, and must be claimed, the court saying: "While the defense of staleness may be made by demurrer when the facts out of which it springs appear on the face of the bill (Story, Eq. Pl. §§ 404, 503, 751), still it is defensive and must be claimed." Maury v. Mason, 8 Port. (Ala.) 211; Solomon v. Solomon, 83 Ala. 395. Taking the objection by demurrer is in analogy to the rule applied to the Statute of Limitations, as indicated in Olden v. Hubbard, supra; so that to avoid the presumption and render the complaint invulnerable to a demurrer, the plaintiff is required to allege in his complaint the facts and circumstances on which he relies to rebut such presumption. We see no reason to change the original di rection made in this case. ARKANSAS SUPREME COURT. Hardy M. BANKS, Appt., V. Charles L. FLINT, Trustee for the New England Mortgage Security Co. (....Ark.....) 1. To sustain the defense of usury in an action brought to foreclose a mortgage given to secure repayment of borrowed money, it must appear that the lender was to receive excessive interest, or that a bonus or commission has been paid to the agent of the lender with his knowledge, or under circumstances from which his knowledge will be presumed, which, when added to interest paid or to be paid the lender, will cause the lawful rate to be exceeded. 2. Resident attorneys employed by the general agent of money brokers to assist him in negotiating loans, whose duties are to solicit applications for loans from good men, to examine and report upon security offered and prepare and furnish abstracts of title; to report upon the character of applicants for morality, sobriety, industry and promptness in payment of debts; to receive and hold moneys forwarded for applicants until all defects of title are cured and the notes and mortgages executed, and then to pay over the money and receive the securities, all of their services being performed for the protection of the lender and their com NOTE.-Usury as a defense. Where the mortgage was given in pursuance of a usurious transaction, usury is a good defense to an action upon the mortgage. Andrews v. Poe, 30 Md. 485; Walch v. Cook, 65 Barb. 30; Vickery v. Dickson, 35 Barb. 96; Aldrich v. Wood, 26 Wis. 168. See Cattle v. Haddox, 14 Neb. 527; White v. Lucas, 46 lowa, 319; Patterson v. Birdsall, 64 N. Y. 294. That it is a personal defense of the mortgagor is held in Fenno v. Sayre, 3 Ala. 458; McGuire v. Van Pelt, 55 Ala. 344; Lamoille County Bank v. Bingham, 50 Vt. 105, and Ready v. Huebner, 46 Wis. 692. The exceptions are cases of assignees in bankruptcy, or voluntary trustees for the payment of creditors. Wells v. Chapman, 13 Barb. 563. See De Wolf v. Johnson, 23 U. S. 10 Wheat. 367, 6 L. ed. 343. The defense may be set up by any person claiming under the mortgagor and in privity with him. Maher v. Lanfrom, 86 Ill. 513; Brolasky v. Miller, 9 N. J. Eq. 807; Westerfeld v. Bried, 26 N. J. Eq. 357; Carow v. Kelly, 59 Barb. 239; Brooks v. Avery, 4 N. Y. 225; Berdan v. Sedgwick, 44 N. Y. 626; More v. Deyoe, 22 Hun, 208; Greene v. Tyler, 39 Pa. 361; Williams v. Tilt, 36 N. Y. 325; Williams v. Birch, 2 Trans. App. 143; Knickerbocker L. Ins. Co. v. Hill, 6 Thomp. & C. 287. It can be taken advantage of only by the debtor himself. Gatewood v. Macon City Bank, 49 Ga. 50; Post v. Dart, 8 Paige, 639, 4 N. Y. Ch. L. ed. 573; Campbell v. Johnston, 4 Dana, 178; Cook v. Dyer, 3 Ala. 646; Spengler v. Snapp, 5 Leigh, 478; Murray v. Judson, 9 N. Y. 85. The party himself can plead it, but not a stranger. Post v. Dart and Brolasky v. Miller, supra; Shufelt v. Shufelt, 9 Paige, 137, 4 N. Y. Ch. L. ed. 639. Nor can one who for full consideration assumes payment of the mortgage. Burlington Mut. L. Asso. v. Heider, 55 Iowa, 424; Hough v. Horsey, 36 Md. 181; Conover v. Hobart, 24 N. J. Eq. 120; Parkinson v. Sherman, 74 N. Y. 88; Cramer v. Lepper, 26 Ohio St. 59. pensation being received under an agreement with the general agent,-cannot be considered the agents of the borrowers in procuring a loan. 3. A recital in an agreement between a money broker and an intending borrower that the former is the agent of the latter in the negotiation of the loan will not alter the facts nor prejudice existing rights, where the broker is in fact the agent of the one from whom ths loan is secured, which fact is known to the parties at the time the agreement is signed. 4. Where a company is organized for the purpose of lending money, and a large share of its stock is taken by a bank and its officers, some of whom become directors in the company, and it puts no agents in the field of its contemplated activity, employs no means to obtain information as to the desirability of making loans applied for and wholly fails to advertise its business, while the bank through which the company does nearly all of its business advertises to negotiate loans on the terms fixed by the company and which are never changed to suit the convenience of the borrower, engages attorneys and examiners, procures all information needed by the company to enable it to act intelligently and carefully, looks after the company's interests, in fact doing all things which prudent men in lending money usually see to in person, besides having all notes made payable at its place of business and attending to collecting them, the bank will be In a suit to redeem, the mortgagor is entitled to the benefit of the statute penalty for usury in reduction of the sum payable on the mortgage. Hart v. Goldsmith, 1 Allen, 145; Gerrish v. Black, 99 Mass. 315. In such a suit a party cannot show usury unless the usury and the particular facts and circumstances constituting it are set forth in the pleadings. Baldwin v. Norton, 2 Conn. 161; Waterman v. Curtis, 26 Conn. 241. Deductions will not be allowed for usurious interest already paid by a former owner. Perrine v. Poulson, 53 Mo. 309; Kirkpatrick v. Smith, 55 Mo. 389. The burden of proof to establish usury rests upon the party setting up that defense, and facts necessary to constitute it must be established beyond a reasonable doubt, by a clear preponderance of evidence. Conover v. Van Mater, 18 N. J. Eq. 481. Usury may be interposed as a general defense in an action brought to foreclose the mortgage. Munter v. Linn, 61 Ala. 492; Price v. Pollock, 47 Ind. 362; Freeman v. Auld, 44 N. Y. 50; Wheaton v. Voorhis, 53 How. Pr. 319; Greene v. Tyler, 39 Pa. 361; Union Bank v. Bell, 14 Ohio St. 200; Fay v. Lovejoy, 20 Wis. 407. A mortgagee whose security is tainted with usury cannot claim any rights, as a bona fide purchaser, against a secret equity. Meyer v. Cook, 85 Ala. 417; Smith v. Lehman, 85 Ala. 394. The owner of land who conveys it to a purchaser may, if he thinks proper to do so, elect to affirm the usurious mortgage by selling his property subject to the payment of the liens of such mortgage. And the purchaser, in that case, takes only the equity of redemption, and cannot question the validity of the previous mortgage on the ground of usury. Green v. Morse, 4 Barb. 344; Shufelt v. Shufelt, 9 Paige, 140, 4 N. Y. Ch. L. ed. 641; Stoney v. American L. Ins. Co. 11 Paige, 635, 5 N. Y. Ch. L. ed. 261; Schermerhorn v. American L. Ins. & T. Co. 14 Barb. 167. |