#### CARR v. COLE et al.

Supreme Court of Florida, Division B.

May 7, 1935.

Edwin T. Osteen, of West Palm Beach, for appellant.

Kearley & Chapman, of West Palm Beach, for appellees.

ELLIS, Presiding Justice.

J. A. Carr exhibited his bill in the circuit court for Palm Beach county against Jeannette Cole and her husband, Roy H. Cole, to enforce the lien of a mortgage upon certain lands and personal property contained in the buildings located thereon.

Mrs. Jeannette Cole interposed an answer setting up the defense of usury in the transaction resulting in the execution of the mortgage. Her husband, Roy H. Cole, seems not to have'been served with process and interposed no defense.

The case was heard on 'bill, answer, a document called a “reply,” and testimony taken before a special examiner. The chancellor found that the transaction was usurious and dismissed the bill of complaint. From that decree, an appeal was taken by Mr. Carr.

The brief in appellant’s behalf states that the question involved is: “Did the plaintiff willfully and knowingly charge or accept sums of money greater than provided by section 6938, C. G. L., and should the penalty be invoked as provided by section 6939, O. G. L.”

It is perfectly apparent that such a statement of the question of law involved is not a compliance with the requirements of rule 20 of the rales governing practice in the Supreme Court. The statement does not present the point of law intended for solution in such words as to make it plainly to appear. See St. Andrews Bay Lumber Co. v. Bernard, 102 Fla. 389, 135 So. 831, 834; Callaway v. State, 112 Fla. 599, 152 So. 429.

Mi-. Justice Brown, speaking for the court in the St. Andrews Bay Lumber Co. Case, supra, referring to the rule, said:

> “ ‘The intention is that the statement of questions involved shall be framed in such a manner, that by reading it, the court, without being compelled to examine the argument of counsel or any other part of the brief or record, may quickly see the nature of the legal issue, and in a general way, what points it will be called on to decide.’ ”

In order to determine whether a money transaction is tainted by usury and whether the lender comes within the terms of the statute denouncing it, it is essential that the undisputed facts as disclosed by the record be examined.

The statement of the question involved, as contained in the brief, sets up no facts by which the court could test the usurious quality of the transaction. In other words, the brief is of no more aid to the court than if counsel had stated that the question to be decided is whether the chancellor erred in entering the decree.

*393Nevertheless, we have examined the evidence as disclosed hy the report of the special examiner and find, as the chancellor found, that the complainant “not accidentally but intentionally, proceeded with the loan and its collection on terms and conditions that were of his own making” ; that his insistence upon payment in accordance with the bargain he made is willful and intentional.

The transaction was completed on February 17, 1928. Mrs. Cole was a school teacher. She had been twice married. Her first husband was named Thompson. The second husband is named Cole. At the time of the institution of the suit Mrs. Cole had not heard from him for several years and did not know of his whereabouts. She owned the property described in the mortgage and obtained a loan of money to meet certain obligations and to pay taxes which had accumulated against it.

 According to the “statement” admitted in evidence, the taxes, assessment installments, recording fees, and attorney’s fee, and federal judgment certificates amounted to the sum of $1,684.46. That sum, together with the check which was given to her, amounted to $8,691.46. Of that amount she returned immediately $91.46, so that when the transaction was closed on February 17, 1928, she actually received $8,600 in the payment of taxes and assessments, attorney’s fees, and recording fees, and judgment certificates, and the check on the bank which was delivered to her.

She was required to execute a note, in which her husband joined, for the sum of $10,000 dated December 24, 1927, payable on or before five years after date with 8 per cent, interest per annum from date.

Up to and including December 24, 1931, Mrs. Cole has paid by way of interest upon the loan the sum of $3,100. At the expiration of a period of five years the interest would amount to $4,000 and Mrs. Cole would owe the principal of $10,000 expressed in the note. In short, for the use of $8,600 for five years the complainant exacted a return of $5,400 and the sum originally advanced of $8,600. Such an exaction or charge for the use of money constitutes usury under the provisions of section 693S, C. G. L. 1927. That section provides that it shall be usury and unlawful for any person to reserve, charge, or take for any loan, or.for any advance of money, a rate of interest greater than 10 per cent, per an-num, either directly or indirectly, by way of commission for advances, discount, exchange, or by any contract, contrivance, or device whatever whereby the debtor is required or obligated to pay a sum of money greater than the actual principal sum received, together with interest at the rate of 10 per cent, as aforesaid.-

By the contract, contrivance, or device which the complainant used in the transaction with Mrs. Cole, he required or obligated her to pay interest at a rate greater than 121⁄2 per cent, per annum. Such a contract is usurious. See Purvis v. Frink, 57 Fla. 519, 49 So. 1023; Wilson v. Conner, 106 Fla. 6, 142 So. 606; Sullivan v. Thumm, 101 Fla. 1412, 136 So. 439.

The chancellor held that “under the facts in this case both principal and interest are forfeited. The debt is discharged.”

The evidence amply sustains the conclusion of the chancellor that the complainant willfully violated the provisions of the act. He knew that by the scheme or device used he was exacting the payment of interest greater than 10 per cent, per annum. It is merely a matter of calculation. He cannot seek immunity behind the advice of counsel that in their opinion the transaction was not viola-tive of the statute forbidding the exaction of greater interest than 10 per cent, per annum for the loan of money.

Section 6939, C. G. L. 1927, provides that any person willfully violating the provisions of section 6938, supra, shall forfeit the entire interest so charged, or contracted to be charged, or reserved, and when the usurious interest has been taken, or reserved, or has been paid, then, and in that event, the guilty person, who has taken or reserved or has been paid, either directly or indirectly, such usurious interest, shall forfeit to the party from whom such usurious interest has been reserved, taken, or exacted in any way, double the amount of interest so reserved, taken, or exacted.

Now the complainant for a loan of $8,600 in money required Mrs. Cole to execute a note for $10,000 dated two months prior to the •date of the loan and bearing interest on the larger sum at the rate o-f 8 per cent, per an-num from date. The excess sum of $1,400' over the amount actually loaned was a contrivance or device by which the lender reserved or exacted a sum in excess of 10 percent. interest upon the sum of money actually loaned. It is clear therefore that both the amount of interest actually paid and the sum of $1,400 excess over the actual loan of $'8,600 exacted by the contract or note should be-*394doubled and forfeited to Mrs. Cole. See Hagan v. Neeb, 105 Fla. 207, 140 So. 916, 143 So. 124.

That rule being applied extinguishes the debt and operates as a cancellation of the note and mortgage with a balance due to Mrs. Cole of $400 from the complainant. The chancellor, however, did not allow Mrs. Cole a judgment against the complainant for the sum which would be due to her after deducting double the amount of interest actually paid and that exacted by the contract from the principal, but declared that both principal and interest were forfeited and the debt discharged.

The effect of the decree was to discharge the debt, which we affirm. The order that the bill be dismissed with costs against the complainant we also affirm.

TERRELL and BUFORD, JX, concur.

WHITFIELD, C. J., and DAVIS, J., concur in the opinion and judgment.