¶1C., a judgment creditor of L., sued L. and J.’s administrators, praying a sale of land incumbered by a mortgage to J., and a distribution of the proceeds. The administrators, having filed an answer and cross-petition on the mortgage, L. and C., by separate answers thereto, charged that J. himself had received usurious interest on said mortgage debt. Separate replies denied this. The common pleas, finding that under the pleadings, $8,842.78 was due on the mortgage, decreed a sale which was made. *179At a subsequent term the issues as to usury were tried and determined in favor of said administrators, and distribution ordered accordingly. C. alone appealed. In tbe district court L. was allowed to testify to the agreement made with J. and usury paid to him, notwithstanding the administrators objected to L.’s competency as a witness to said facts. That court, as between C. and J.’s administrators, found that usury had been so paid, and deducted it from the preferred sum payable to the administrators.
¶2Held: 1. The appeal did not carry up the issues made by L.’s answer. As against him the common pleas decree remained in force, and J.’s administrators may have execution for the actual unpaid balance of the sum found due them in that court.
¶32. L. was a competent witness to said facts upon the issue between J.’s administrators and C.
¶4Judgment affirmed.