MCCARTHY

v.

FIRST NATIONAL BANK OF RAPID CITY, SOUTH DAKOTA

Mr. Justice Lamar,

after making the foregoing statement, delivered the opinion of the court.

Section 5198 of the Revised Statutes, under which this suit was brought, provides that “taking, receiving, reserving, or charging” more than a lawful rate of interest, when knowingly done by a national bank, shall be deemed a forfeiture of the entire interest. In case a greater than the lawful rate “has been paid, the person by whom it has been paid, may recover back twice the amount of the interest thus paid, . . . provided such action is commenced. within two years from the time the usurious transaction occurred.”

The debt was created in 1887, was paid in full in January, 1905, and on January 25, of the same year, the maker of the note brought suit to recover twice the amount of the interest paid thereon prior to 1897.

In considering the bank’s plea that the action was barred because not brought within two years, and the plaintiff’s claim that the statute only ran from the date the debt was paid, the Supreme Court of South Dakota pointed out the irreconcilable conflict in the cases dealing with this question, and, after making a careful analysis of all the authorities, reached the conclusion, in which we concur, that the statute begins to run from the date of the payment of the usurious interest. 17 S. Dak. 393. Considering this review of the decisions, we shall only discuss the statute itself, and that briefly.

National banks are prohibited, from making usurious contracts. If they disregard its provisions, the law not only furnishes a defense, but gives a right of action., As to the defense, there is no statute of limitations. Whenever sued the debtor may plead, the usurious contract and be relieved from paying any interest whatever. But if he elects to avail himself of the cause of action, he must sue “within two years from the time the usurious transaction occurred.”

If .the making of the note was the “usurious transaction,” from which date the statute began to run, the anomaly of the right to recover being barred before the cause of action arose would result in all cases where the debtor for two years after the loan failed to pay interest, even though he subsequently discharged the debt, principal and usury. If the final payment of the debt is the “usurious transaction” and suit must be brought in two years from that date, then there could never be a recovery in those cases where the debtor had paid usury, but was not able to pay the debt in full.

That the statute does not begin to run from the date of the loan, nor from the date of the satisfaction of the debt, but from the date interest is paid, appears from an analysis of the two classes of pases referred to in Rev. Stat., § 5198, noting that “interest paid” in the last clause is used in contradistinction tó interest “reserved or charged,” in the first sentence of the section. Banks may make ordinary loans and charge interest to b'e collected at the maturity of the note.- But, as they usually reserve and deduct it in advance, by way of discount, the statute is framed so as to apply to cases where the interest is paid by the debtor as well as to those in which it is reserved by the bank. These deductions by way of discount are not treated as payments. . They do not come out of the debtor’s pocket, though they lessen the amount which her receives when the loan is made, and when sued he may plead usury and escape liability for the amount thus charged or retained. But, such reservation by the bank, not being a payment made by the debtor, he, of course, cannot avail himself of the right to maintain a suit given only to those who have paid interest.

But when the debtor -actually makes a payment, as interest, and the bank knowingly receives and appropriates it as such, the usurious transaction is complete, the right of the one and the liability of the other is fixed, the cause of action-arises and the statute of limitations begins to run. There is no locus penitential. That privilege is only granted to those banks which, having charged usury, may, by a refusal to accept interest when tendered, show that’ they will not carry the illegal contract into execution, and thus escape the two-fold penalty.

Those courts which hold that the statute begins to run from the payment of the debt, instead of the payment of the interest, have been influenced by statements of Mr. Justice Harlan in McBroom v. Investment Co., 153 U. S. 318, which involved the construction of the usury statute of the Territory of New Mexico. That act differed in several re'spects from Rev. Stat., § 5198. But that case did not rule that in a suit under the act of Congress the statute did not run from the date usury was paid and received as such. This court did not understand that such was the meaning of that case, as appears from his opinion in Brown v. National Bank, 169 U. S. 416, which involved a construction of Rev. Stat., § 5198. For he there points out the difference between “paying” and “agreeing to pay,” and says that, “if at any time the obligee actually pays usurious interest, as such, the usurious transaction must be held to have then and not before occurred, and he must sue within two years thereafter.”

. The Supreme Court of South Dakota properly held that the recovery of interest paid more than two years before suit was brought was barred, and its judgment is

Affirmed.