Brand v. Rueter

<p>Abstract of the Decision.</p> <p>1. Payment, § 15*—when application of payment proper. An application of payment to liquidate accrued interest on notes to the date when made, and thereafter to the payment of the principal of the notes, is proper especially in the absence of any direction by the debtor.</p> <p>2. Payment, § 6*—when note of third person a conditional payment. Where a debtor gives a note of a third person, in the absence of any agreement that such note be accepted as payment of any part of the debt and of circumstances raising a presumption that it was so taken, the giving of the note will be deemed conditional payment only, and as of the date when it is collected.</p> <p>3. Limitation of actions, § 23*—when statute commences to run in action on note. In an action on a note where the debtor gives the note of a third person in payment of the note in suit, the note of such third person being deemed conditional payment only and of the date of its collection, the running of the statute of limitations is regulated by the date of the payment of such third person’s note.</p> <p>4. Usury, § 5*—when evidence insufficient to show usury. In an action to foreclose a trust deed secured by promissory notes, evidence examined and held insufficient to show usury.</p> <p>5. Mortgages, § 503*—when evidence as to want of license inadmissible. In an action to foreclose a trust deed executed to secure promissory notes, evidence as to whether or not the intermediary securing the loan evidenced by such note was licensed in accordance with city ordinance, held irrelevant.</p> <p>6. Usury, § 53*—when burden of proof on debtor. Where in an action to foreclose a mortgage secured by notes the defense of usury is set up, the burden of proving usury is on the debtor.</p> <p>7. Usury, § 32*—when usury not a defense. In a suit to foreclose a trust deed executed to secure promissory notes where the interest, if usurious, was paid before maturity and before the transfer of the notes to the holder bringing the suit thereon, the defense of usury is not available.</p>