#### W F. Bacon v. Iowa Savings & Loan Association, Appellant, Henry Sommerx, Appellee.

Building and Loan Associations: USURY: who may plead. A 1 plea of usury cannot be interposed to a building and loan contract by one not a party thereto, nor by one not authorized by his assignor of the property.

Building and Loan: interest: how computed. To determine 2 the amount of interest due on a loan from a building and loan association, twleve per cent, simple interest should be computed on the amount of the loan from its date, and the total of premiums and interest, paid and delinquent, deducted therefrom.

*Appeal from Hurriboldt District Court.*— Hon. W. B. Quae-ton, Judge.

Wednesday, October 21, 1903.

Action for an accounting and for the cancellation of a mortgage. In October, 1892, one McOomb borrowed of the defendant association $2,000, giving his note therefore, and securing it by a mortgage on real estate and by pledg. ing twenty shares of stock in the association. This real estate and stock was afterwards transferred to the plaintiff who assumed the debt. By the terms of the contract the borrower agreed to pay $12 per month dues on his stock and all fines, and the further sum of $12 per annum , and $10 interest on the loan each month. The premium was reduced to $8 per month April 1, 1899. $1,080 was paid on dues, $978 on premium, and $895 on interest. The defendant by cross-petition asked a foreclosure of the mortgage and a judgment for the sum found due thereon. There was a decree for the defendant association for a part of its claim. Both parties appeal. The association will be designated the *“appellant.”*

Reversed.

*450*Baily cfi Stipp*for appellant.

*Clarice c& Cohenour*for appellees.

SheRWin, J.

i. usury: who may plead. Conceding, for the purposes of this case that the contract between McComb and the defendant association was tainted with usury, the plea cannot be in •

terposed by the plaintiff, for he was neither a party to that contract nor authorized by McOomb to avail himself of such a plea. *Hollingsworth v.*Swickard, 10 Iowa, 385; *Frost v.*Shaw, 10 Iowa, 491; *Perry v. Kearns,*13 Iowa, 174; *The Burlington Mutual Loan Association v.*Heider, 55 Iowa, 424; *Iowa Savings & Loan Association v.*Chase, 73 N. W. Rep. 1100. Moreover, the con. tract in question is directly within the class legalized by the •curative act of the Twenty-Seventh General Assembly, Chapter 48. *Association v. Heidt,*107 Iowa, 297; *Association v.*Curtis, 107 Iowa, 504; *Association v. Selby,*111 Iowa, 402; *Edworthy v. Iowa S. & L. Ass'n,*114 Iowa, 220.

*4512 building fnterestfhow computed.*450We are not advised as to the method of computation adopted by the trial court, resulting in a judgment for the association for only $396.20. Under section 1898 of the Code, the borrower is to be charged with the full amount of the loan received by him, together with delinquent dues interest, premium, and fines, and he is to be credited with the withdrawal value of his pledged stock', but “no greater . recovery shall be had than the net amount of principal actually received, with interest thereon at a rate not ■greater than twelve per centum” on the amount so received. There is no question here as to the withdrawal walue of the stock. The only remaining question is as to 'the amount which the association may recover under the ¡twelve per cent, limit fixed by the -statute. In *Iowa Deposit & Loan Co. v. Timme,*85 N. W. Rep. 820, we held that , the computation of interest under the’statute should be without rests occasioned hy the payment of interest, dues? *451and premiums. Following this rule to ascertain what rata °£ interest the borrower has paid, simple interest at the rate oí twelve per cent, should computed from the date of the loan, and the total amount of interest and premium paid and delinquent determined, and if the latter amount is larger than the former the statutory limit has been exceeded and the borrower is entitled to credit for the excess in addition to the withdrawal value of his stock. See *Briggs*v. *Iowa Savings & Loan*Association, 114 Iowa, 232. The interest and premiums paid and delinquent in this case do not exceed the twelve per cent, limit and the association was entitled to recover the difference between the loan and total delinquencies, amounting to $2,197, and the withdrawal value of thestoct, $1,520.60, with interest as prayed.

The judgment is therefore REVERSED.