SEAWELL v. HENDRICKS

McATEE, J.:

The remedy sought for by the plaintiff in this action is based upon § 9, art. 6, ch. 16, p. 223, Statutes of Oklahoma, 1893, which provides, that:

"A person taking, receiving, retaining, or contracting for any higher rate of interest than the rate of twelve per cent. per annum, shall forfeit all the interest so taken, received, retained, or contracted for. * * When a greater rate of interest has been paid than twelve per cent. per annum, the person paying it, or his personal representative, may recover the excess from the person taking it, or his personal representative, in an action in the proper court."

This section was repealed by the legislature of the Territory by an act approved February 21, 1895, providing that:

"Sections 6, 7, 8 and 9, of art. 6, ch. 16, of the compiled laws of 1893, entitled 'Contracts,' are hereby repealed."

It was provided by § 2697 of the Statutes of 1893, p. 545, that:

"The repeal of any statute by the legislative assembly shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability."

It is the contention of the plaintiff in error that this general provision of the statute preserves to him the remedy for the recovery of the usurious interest paid to the defendant in excess of twelve per cent. We think this contention is well founded. The language of the statute is plain, that if any higher rate of interest than twelve per cent. per annum be taken the person so taking it "shall forfeit all the interest so taken, received, retained or contracted for."

The defendant is, therefore, subject to a "forfeiture" and he is subject to a liability "unless the repealing act so expressly provide" otherwise. The section of the statute providing the forfeiture and liability was repealed by the legislature without expressly providing that any person who was subject to a forfeiture or liability under it should be released therefrom, or that the forfeiture or liability should be extinguished. The § 2697 was not in any way affected by the repealing act, nor does the repealing act in any way touch, refer to, or relieve persons who were subject before its enactment to the "forfeiture" or recovery provided for the benefit of the person making such usurious payment by the section of the statutes above set out; and hence we consider the language of the statute peremptory, effective, and not clouded in any way, by doubt. ( Jenness v. Cutler, 12 Kan. 500; Peoples Bank v. Dalton, 2 Okla. 476, 37 Pac. Rep. 807; United States v. Reisinger, 128 U.S. 99; State v. Showers, 34 Kan. 269; State v. Boyle, 10 Kan. 93.)

Upon a precisely similar statute it was said by the supreme court of North Dakota in the case of National Bank of North Dakota v. Lemke, 54 N.W. Rep. 521.

"That the repeal of a statute, penal in its nature, without a saving clause, operates to absolutely extinguish all penalties under such law, is, we think, quite well settled. But this rule of law has been abrogated by a general provision of this state. (And refers to § 4767, Comp. Laws, which is the same as ours). Other states have substantially the same provision. For a construction of the Indiana statute, see W. U. Tel. Co. v. Brown, 108 Ind. 538, 8 N.E. Rep. 171. For Missouri statute, see State v. Kas. City, etc. R. Co., 32 Fed. Rep. 722. For Kentucky statute, see Com. v. Sherman, 85 Ky. 686, 4 S.W. Rep. 790. In each of these cases the court enforces a penalty incurred under a statute that had been repealed prior to the time of the trial. The repealing statute of this state passed in 1890 is silent as to the penalties incurred under the former law. Hence, under this plain provision of § 4767, Comp. Laws, appellant is not relieved from that penalty."

And it is said in Ex parte Larkin, Okla., 25 Pac. Rep. page 745, as follows:

"It is also objected to this act that it is an independent act, and that a saving clause can only be made in the repealing statute itself. That the saving clause is usually found in the repealing act may be admitted, but that it must be found there cannot be conceded. In most of the states of the Union, a saving of rights and prosecutions under a repealed statute, is effected by general law, and no provision is made in the repealing act at all, but the repealing act and general law are construed together."

We shall, therefore, hold that the right of the plaintiff to recover under § 9, art. 6, ch. 16, Statutes of 1893, as claimed in the amended petition, is complete; that it was not necessary that his right of recovery therein provided should be expressly reserved in the repealing act, but that it was sufficient, according to the uniform rule adopted in other states, that the plaintiff's right to recover the forfeiture from defendant was provided for in the general law of the Territory, § 2697, which remains unrepealed.

But it has been strongly urged by the defendant that no sufficient allegation of payment has been made by the amended petition by which it appears on the face of the petition that a case of usury has been made out. It is contended that the warranty deed originally executed as a mortgage, remains still a mortgage, and that it is necessary that the mortgagee should have executed a reconveyance of the property, or that foreclosure, judgment and sale were necessary in order to vest the real estate in the mortgagee. We cannot agree with this contention.

The amended petition alleges that the agreement of defeasance which accompanied the warranty deed, was cancelled and satisfaction acknowledged on the margin of the record thereof, in the office of the register of deeds. This was sufficient to vest the title absolutely in the defendant. Where an absolute deed to land is given, accompanied simultaneously with a bond or agreement of defeasance, the latter may, upon agreement and consideration, be surrendered and cancelled so as to vest the estate unconditionally in the grantee, by force of the first deed, provided the transaction is conducted with fairness, both as between the parties and as against the creditors of the mortgagor. (15 Amer. Eng. Enc. of Law, 793; Thrull v. Skinner, 17 Pick. [Mass.] 213; Rice v. Rice, 4 Pick. [Mass.] 349; Harrison v. Phillips Academy, 12 Mass. 456.)

The amended petition avers that upon the loan of six thousand dollars the plaintiff paid to the defendant in cash the sum of $4,576.30, and in the opera house property $7,437.50, which was agreed between the plaintiff and defendant to be cash payment upon said notes. The notes were thereupon surrendered and delivered up. These payments are all alleged to have been made between the 7th day of November, 1891, and the 6th day of December, 1894.

We think the allegations of the petition are plain, full and sufficient; that the plaintiff made out, under his amended petition, a case for recovery, and that the demurrer should have been overruled.

The judgment of the court is, therefore, reversed and it is ordered that the case be reinstated, and cause be proceeded with below in consonance with these principles.

Scott, J., who presided in the court below, not sitting; all the other Justices concurring.