Blakeley, &c. v. Adams. (Case No. 2.) which the surety had no notice. But if usury was knowingly paid by appellee, the mere fact that appellants subsequently executed a note therefor will not estop him from relying upon this defense. For reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent with this opinion. Whole court sitting. Judges Paynter, White and Hobson dissent. Judge Hobson's dissenting opinon: Appellee, Adams, filed the first of these actions May 5, 1899. He alleged in that action that he had signed a number of notes as the surety of W. H. Blakeley and Hettie S. Blakeley; that he had been sued on the notes, and judgments had been given against him, and he had been compelled to pay the judgments; that he had paid them for W. H. Blakeley and Hettie S. Blakeley, and no part of the money had been repaid to him. He asserted a lien on certain land, and prayed for personal judgment and the enforcement of the lien. The notes are filed with the petition and are all signed thus: "W. H. Blakeley, Hettie S. Blakeley, J. C. Adams." Mrs. Blakeley, under the statute then in force, could sue and be sued as a single woman. She filed an answer in which she denied some of the allegations of the petition, and the case was referred to a commissioner, who reported that Adams had paid the money on the notes as the surety of W. H. and Hettie S. Blakeley, and that they were all included in the mortgage. A written contract was then made, by which Adams accepted a note for $3,908.35, due one year after date, and all matters of defense were waived except the question of his having a lien on the Hazelip Blakeley, &c. v. Adams. (Case No. 2.) property; and this, by the agreement, was to be submitted to the court. Subsequently, the action on this question. was submitted to the court, and judgment was entered in favor of Adams. From this judgment W. H. and Hettie Blakeley prayed an appeal to this court. This termihated that action and settled all matters of controversy there between Adams and Mrs. Blakeley. When the time of credit secured by the agreement with Adams had expired, and his debt still remained unpaid, he filed the second of these actions to enforce the written contract. He was then met by the plea that the original notes which he had set up in his petition in the other case, and which he had paid as surety for Mrs. Blakeley, contained usury paid to the holder of those before Adams was sued upon them. To this plea Adams replied, setting up the estoppel by the proceeding had in the former case, and the court held the estoppel good. The question before us is, was this correct? If the notes which Adams had paid were for any reason unenforceable, and he had paid money which he was not legally bound to pay, this defense should have been presented in the suit which Adams brought to recover the neney which he had paid for Mrs. Blakeley and as her surety. His right of action in that suit was for money paid for Mrs. Blakeley and at her request. It was a suit upon the implied contract to reimburse him. If there was a want of consideration for the debt or any reason why she should not reimburse him, that reason should have been set up in that action. She could not set up part of her defenses there, and litigate them or agree on a judgment to be entered, and after this, when the judg ment is sought to be enforced, go back and set up a defense thot ought to have been presented then. Turner v. Blakeley, &c. v. Adams. (Case No. 2.) Gill (105 Ky., 414) (20 R., 1253) (49 S. W., 311); Bethel v. Durall (22 R., 1081) (61 S. W., 699). The defense now made is in effect that, on account of usury contained in them, the notes paid by Adams did not amount to $3,908.35; that Adams was to this extent not legally bound to pay the creditors, and Mrs. Blakeley was therefore not legally bound to pay him, and her note to this extent is without consideration. If this was true the defense should have been set up in the first action and was concluded by the settlement then made; for a litigant can not, when sued upon a cause of action, settle the case, and so get time on the debt, without being concluded on all defenses then existing against the payment of the debt. The note for $3,908.35 which Mrs. Blakeley executed to Adams is based on a good consideration the settlement of that suit and the getting of 12 months' time on the debt. It is true a compromise of usury will not be enforced, but this was not a compromise of usury. No usury will be paid to Adams when the note for $3,908.35 is collected. He will only be repaid the money he has paid out. If any usury was embraced in the original debt, that usury was paid to the holders of the notes when Adams paid off the judgments rendered against him. If he had included in the note for $3,908.35 usurious interest up to the settlement on the amount he had paid, then the settlement would have been a compromise of usury; but when this was not done, and the only thing put in the note was the amount he had paid and legal interest, the settlement by Mrs. Blakeley was simply a waiver on her part to insist on an objection that part of the money had been paid by the surety when he was not legally liable for it, and this waiver she made to get the suit settled and time given on the debt. There Blakeley, &c. v. Adams. (Case No. 2.) was, therefore, no vice in the contract. If she had paid Adams the note for $3,908.35 at maturity, could she within a year have sued him to recover usury embraced in the original notes? The right to recover usury exists only against the usurer, not against one who has only gotten back the money he has paid out with legal interest. The statute neither by its language nor spirit sustains the result contended for. It is as follows: "Legal interest shall be at the rate of six dollars upon one hundred dollars for one year and at the same rate for a greater or less sum, and for a longer or shorter time." Kentucky Statutes, section 2218, "All contracts and assurances made directly or indirectly, for the loan or forbearance of money, or other thing of value, at a greater rate than legal interest, shall be void for the excess over the legal interest. The amount loaned with legal interest may be recovered on any such contract or assurance; but if the tender refuse, before suit brought, a tender of the principal, with legal interest, he shall pay the costs of any suit brought on such contract or assurance." "A court of equity may grant relief for any such excess of interest, and to that end compel the necessary discovery from the lender or forbearer." "Such excess of interest may be recovered from the lender or forbearer, although the payment thereof was made to the assignee." "Partial payment on a debt bearing interest shall be first applied to the extinguishment of the interest then due." Kentucky Statutes, section 2219. This makes 6 per cent. the legal interest, and declares all contracts for a greater rate void for the excess over the legal interest. The amount loaned, with legal interest, may be recovered; if the lender refuse a tender of the principal with legal interest, before suit brought, he must pay the Blakeley, &c. v. Adams. (Case No. 2.) cost of the suit; and usury which is paid may be recovered from the lender or forbearer, though paid to the assignee; but the statute does not make the surety liable where he has paid the debt for his principal and the principal afterwards reimburses him in the amount he has paid out. In McCrae v. Gunter's Ex'rs (14 R., 5) (18 S. W., 1034), a note which contained usury was paid by the surety, who took a mortgage from the principal to indemnify him. In a suit by the surety to foreclose the mortgage it was pleaded that there was usury in the debt which the surety had paid. The plea was held bad, although made by a junior mortgagee, and although the principal's right to recover the usury from the creditor was barred by limitation. The court said: "The party receiving the usury is alone responsible, but the endeavor is to make third parties liable, for the reason, doubtless, that time bars the recovery as against the original creditor." See, also, Deatly v. Ralls, 3 Ky. Law Rep., 386. That case is not near so strong for the surety as the one before us, for here there is not only a note, but an agreed judgment fixing the amount of the debtor's liability to the surety, and after this, for the first time, a plea of usury is presented. The decision rests on the rule universally recognized, that, where the surety pays the debt without notice of usury in it, the principal can not set up the usury as a defense when sued by the surety for reimbursement. Ford v. Keith, 1 Mass., 139, 2 Am. Dec., 4; Thurston v. Prentiss, 1 Mich., 193; Whitehead v. Peck, 1 Ga., 140; Jones v Joyner, 8 Ga., 562: Jackson v. Jackson, 51 Vt., 253, 31 Am. Rep., 688; Maples v. Cox, 74 Ga., 701; Roe v. Kiser (Ark.), 34 S. W., 534, 54 Am. St. Rep., 288; 1 Brandt, Sur., section 215. The reason for this rule is that the surety pays at the request of his principal, and a man |